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

QV

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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.
If this is all accurate I don't know how this case even got to this point, the chain of command perhaps demanding the case move ahead because something must be done?
 

FJAG

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IMHO you're looking at a case of a lawyer trying to make a mountain out of a molehill.

Essentially if what I understand is correct, a number of these muffins were handed out and eaten by various troops. Most of them threw their wrappers out into the garbage. When some people got sick (high) one of the senior NCOs gathered up some of the wrappers and kept them and later handed them over to the police when they began their investigation. At least one (possibly more) of the wrappers had trace evidence.

The argument now being put forward is that since all the wrappers weren't collected, that there has been a gross miscarriage of justice with Drapeau chiming in with his usual rant about the military police being incompetent.

Again, IMHO, the fact that not all the wrappers were collected means nothing. The fact that they have even one with trace evidence and a clear evidentiary link that she supplied these would be sufficient for a conviction as long as the charges have been properly drafted and the evidence in court links her to these muffins and that she made them. Everything else appears to me as fluff and smoke and mirrors.

🍻
 

ModlrMike

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If I were hearing the case, I would certainly conclude that if there is THC on one wrapper linked to the defendant, it is reasonable to presume that there is THC on all of them.
 

dangerboy

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She must be paying a fortune in Lawyer fees, as (if it was the same lawyer) they initially tried to have the judge recused, since that did not work they are moving to this tactic.
 

FJAG

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She must be paying a fortune in Lawyer fees, as (if it was the same lawyer) they initially tried to have the judge recused, since that did not work they are moving to this tactic.
So you're saying that justice is already being done.

:giggle:
 

rmc_wannabe

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If I were hearing the case, I would certainly conclude that if there is THC on one wrapper linked to the defendant, it is reasonable to presume that there is THC on all of them.

puts on devil's advocate hat

How are we to know these were the same wrappers that the cupcakes in question were in? What procedures were established to secure the scene to ensure the integrity of the evidence? Having someone "pull a wrapper out of the garbage" and hand it over to the MPs as evidence calls that into question. What guarantees are there that this WO didn't pull the ol' switcheroo? (I agree this is very unlikely, however, its a legitimate defense tactic).

takes off devil's advocate hat

This Bdr may be guilty as the day is long, but if there are issues with evidentiary integrity, then its pretty solid grounds for dismissal. If the charges proceed, then its going to be a huge part of the defense strategy to call into question the integrity of the investigation and thus, limit the ability to claim beyond a reasonable doubt that this was a deliberate act.
 

dimsum

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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.
If I had time off (or "personal development"), I'd see if I could go watch.
 

GR66

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I can see a possible case being made.

"One of the soldiers who ate a cupcake and felt fine collected about five wrappers and gave them to the chain of command — one Warrant Officer Mangrove, according to the court document.

The base military police officer who attended the scene, Cpl. Benjamin Whitehall, obtained one of the wrappers from a soldier who got it from Mangrove and tested it for drugs. The test came back negative but later tested positive for traces of THC, according to both Kasper's court document and the response from military prosecutors.

The military police only discovered other wrappers existed almost a year and a half later, in January 2020, after a request from the accused's lawyer."


Soldier collects "about five" wrappers and gives them to the WO. WO gives one only of the wrappers to another soldier who then gives it to the MP. MPs test the wrapper and it comes back negative. Retest the wrapper and it now comes back positive. None of the other four "or so" wrappers are tested to see if they come back positive or negative. In fact they no longer can be found.

Chain of evidence issues? Initial soldier that collected the wrappers felt fine, but he did eat one of the cupcakes. Where did he collect the rest of the wrappers from? The garbage? Was the garbage can tested in case it had traces of THC from some other source? Why was only one of the "about five" wrappers given to the MPs? How was the one that was turned over selected over the other ones? Why didn't the WO give the wrappers to the MPs himself? Where & how were they stored by the WO? By the individual that turned the one over to the MPs? Why the initial false negative test on the wrapper?

Also, how did it come to light that there were additional wrappers? The WO chose only to turn over one to the MPs and presumably he/she didn't mention that there were additional wrappers. How did the accused's lawyer know that there were originally more than the single wrapper when they raised the issue in January 2020?

None of this of course proves that she didn't feed the troops laced cupcakes. However with the initial negative result on the one wrapper that was handed over it could look like an opportunity was missed to cross reference that test with tests of the other wrappers. It they all came back positive then it would look pretty damning. But we'll never know because they didn't get tested. Now we've just got one piece of evidence that passed through a number of hands before reaching the MPs that at first tested negative then later tested positive. Reasonable doubt?
 

OldSolduer

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I can see a possible case being made.



Chain of evidence issues? Initial soldier that collected the wrappers felt fine, but he did eat one of the cupcakes. Where did he collect the rest of the wrappers from? The garbage? Was the garbage can tested in case it had traces of THC from some other source? Why was only one of the "about five" wrappers given to the MPs? How was the one that was turned over selected over the other ones? Why didn't the WO give the wrappers to the MPs himself? Where & how were they stored by the WO? By the individual that turned the one over to the MPs? Why the initial false negative test on the wrapper?

Also, how did it come to light that there were additional wrappers? The WO chose only to turn over one to the MPs and presumably he/she didn't mention that there were additional wrappers. How did the accused's lawyer know that there were originally more than the single wrapper when they raised the issue in January 2020?

None of this of course proves that she didn't feed the troops laced cupcakes. However with the initial negative result on the one wrapper that was handed over it could look like an opportunity was missed to cross reference that test with tests of the other wrappers. It they all came back positive then it would look pretty damning. But we'll never know because they didn't get tested. Now we've just got one piece of evidence that passed through a number of hands before reaching the MPs that at first tested negative then later tested positive. Reasonable doubt?
I'm a Corrections type and we always bag, tag and record any evidence to preserve chain of custody. In my opinion if I were hypothetically the Assisting Officer for the soldier in question I'd be raising this issue with the defense. There never was a true chain of custody IMO.
 
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lenaitch

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Why the initial false negative test on the wrapper?
[/QUOTE]

Possible, depending on the type of test kit used and how it was used, particularly if it involves trace amounts. A proper chemical lab analysis would be always be more accurate.

Breaks in the chain of custody are not, in an of themselves, fatal. They just make the prosecution more difficult because certain assumptions are lost. 'What ifs' have to reach the reasonable doubt level. If, for example, the court buys the argument that THC could have pre-existed in the garbage can from some other source, it might work.
 

LittleBlackDevil

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Again, IMHO, the fact that not all the wrappers were collected means nothing. The fact that they have even one with trace evidence and a clear evidentiary link that she supplied these would be sufficient for a conviction as long as the charges have been properly drafted and the evidence in court links her to these muffins and that she made them. Everything else appears to me as fluff and smoke and mirrors.

🍻

Unless the standard of proof is a lot different in military courts than in civilian courts, I don't see how they get a conviction.

As I understand it, they are basing the case off of ONE wrapper that had traces of THC on it? And that none of the troops complaining of symptoms provided blood or urine samples that were analyzed for THC?

If I am understanding the case, I don't see how you prove beyond a reasonable doubt. How can you prove that it was the cupcakes that caused the issues when you only have traces on one wrapper? IMO it's actually to the defence benefit that the MPs didn't gather the rest. Also, how do you prove they were actually high and there wasn't something else going on non-THC related? A medic saying no heat injury would not seem to cut the mustard in a court of law.

All that said this case is insane. How on earth did this soldier think it was even remotely funny or a non-catastrophically bad idea to give troops at a live fire exercise cannabis cupcakes? How did the MPs not gather more evidence? Also how did it come to pass that NCOs actually believed their troops and didn't accuse them of malingering (well ... this one is probably explained by Gagetown changing a lot since my time there in 1999-2001 and also the difference between unit training and basic).
 

LittleBlackDevil

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None of this of course proves that she didn't feed the troops laced cupcakes. However with the initial negative result on the one wrapper that was handed over it could look like an opportunity was missed to cross reference that test with tests of the other wrappers. It they all came back positive then it would look pretty damning. But we'll never know because they didn't get tested. Now we've just got one piece of evidence that passed through a number of hands before reaching the MPs that at first tested negative then later tested positive. Reasonable doubt?

Sounds like reasonable doubt to me. With the chain of possession issues, defence could make a good argument that we don't know where the trace amount of THC came from. And since it appears none of the troops were tested to see if they actually had THC we don't know that cupcakes were the reason for their illness -- on a legal, beyond a reasonable doubt basis.

On a non-legal basis, it looks suspicious as heck and the poor judgement demonstrated by Bombardier Cogswell is astounding.
 

Kilted

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Perhaps administrative action would have been the better route to go in this case.
 

MJP

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Perhaps administrative action would have been the better route to go in this case.
I would be surprised if it wasn't already ongoing however they usually can't complete the Admin action (especially an AR at the DMCA level) without the discipline side being completed.

That said we may not likely never know the outcome on the admin side as that is Protected B info.
 

dangerboy

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Isn't this case getting pretty close to Jordan regardless?
If you look at the court martial record from when she applied to have the judge reclused: Cogswell C.H. (Bombardier), R. v. - Chief Military Judge the court transcript addresses this.

On 3 June 2020, the court held a conference call to confirm new dates for Bombardier Cogswell’s trial. At the time, the court expressed a desire to get as much done during the summer months prior to the second wave of the pandemic. On 10 June 2020, during a follow up conference call, the parties finally agreed to the new trial dates of 23 November to 11 December 2020. These later dates were specifically chosen to permit Mr Kasper, Bombardier Cogswell’s new defence counsel sufficient time to become familiar with her file and to accommodate his personal court schedule. Prior to confirming these dates, the accused had to waive her paragraph 11(b) Charter rights to accommodate the new defence counsel’s calendar and it was understood that the dates agreed to were beyond the eighteen month Jordan timeline established by the SCC. Any further changes to these dates would require a subsequent waiver.
 

Navy_Pete

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Sounds like reasonable doubt to me. With the chain of possession issues, defence could make a good argument that we don't know where the trace amount of THC came from. And since it appears none of the troops were tested to see if they actually had THC we don't know that cupcakes were the reason for their illness -- on a legal, beyond a reasonable doubt basis.

On a non-legal basis, it looks suspicious as heck and the poor judgement demonstrated by Bombardier Cogswell is astounding.
Sure, but that's not what they are arguing. I'm not even sure if they are arguing the other wrappers should be excluded, just that someone allegedly messed up so the case should be dismissed.

Sounds like a bit of a crap argument, vice just questioning the chain of evidence, getting it thrown out, then asking for dismissal (assuming the crown didn't drop charges at that point).

I thought that she already admitted to actually making the cupcakes and getting the batches mixed up or something, so this seems like an attempt to dodge consequences via a technicality. At least this came to no serious harm; examples like Bill Cosby, the admitted serial rapist, getting his conviction quashed reinforce the separation between the legal system and the justice system.
 
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