Calgary soldier wins appeal in fatal training case

CALGARY – A Calgary soldier convicted for his part in a deadly training accident in Afghanistan has won his appeal.

The Court Martial Appeal Court of Canada has entered a finding of not guilty on Lieut. Darryl Watts’s conviction for negligent performance of duty. It has also ordered new trials on a conviction of unlawfully causing bodily harm and a second count of negligent performance of duty.

Watts, who held the rank of captain at the time and was later promoted to major, was placed in charge of the training range in February 2010. He was found guilty of the three charges in December 2012, demoted two ranks to lieutenant and given a severe reprimand.

Cpl. Josh Baker, 24, was killed when a C-19 Claymore anti-personnel mine loaded with 700 steel balls misfired and peppered his platoon on the practice range. Four other soldiers were seriously hurt when they were hit by the blast.

The first two tests of the anti-personnel mine went off without a hitch that day. But during the next one, the ball bearings fired backward, hitting Baker and the others.

Video played at trial showed several soldiers, including Watts, standing around, watching the test. They were not inside armoured vehicles or standing behind them for cover, as set out in military safety regulations.

Two other soldiers were also convicted for their roles that day.

Watts’s commanding officer, Maj. Christopher Lunney, pleaded guilty Sept. 13, 2012, to negligent performance of duty for failing to ensure Watts was properly qualified on the C-19. He said he had assumed that to be the case because of Watts’s rank. Lunney was demoted one rank to captain from major and received a severe reprimand.

Warrant Officer Paul Ravensdale, who was running the exercise that day, was found guilty of breach of duty causing death, breach of duty causing bodily harm, unlawfully causing bodily harm and negligent performance of military duty. He was acquitted of manslaughter. The now-retired soldier was given a six-month suspended sentence. He also received a fine and was demoted one rank to sergeant.

The Appeal Court found that the military judge who heard Watts’s case erred in his instruction to the jury.

“In my respectful view, based on the manner these charges are framed and the definition of military duty, the military judge incorrectly identified the military duty that needed to be proved beyond a reasonable doubt,” wrote Justice Elizabeth Bennett. “In my respectful view, this instruction created a fatal error to the charge to the panel on all three counts.”

Watts’s lawyer, Balfour Der, had argued that his client had made it clear to Lunney that he was untrained on the C-19 and shouldn’t be held responsible for what happened. Lunney had indicated he was satisfied that Ravensdale was qualified to run the training on C-19.

The Appeal Court took issue with the judge not instructing the jury to consider that Watts had told Lunney about his inexperience with the weapon.

“In my respectful view, this evidence was key to determining if Capt. Watts had the defined military duty imposed on him as required under the National Defence Act,” Bennett wrote.

“If the panel accepted Maj. Lunney had designated Warrant Officer Ravensdale as the officer in charge, then there would not be evidence to support Capt. Watts had a military duty.”