R. v. MacLeod, 2020 CM 3004

COURT MARTIAL Citation: R. v. MacLeod , 2020 CM 3004 Date : 20200314 Docket : 20193 Standing Court Martial Canadian Forces Base Gagetown Oromocto, New Brunswick, Canada Between: Her Majesty the Queen - and - Corporal G.D.W.M. MacLeod, Offender Before: Lieutenant-Colonel L.-V. d’Auteuil, D.C.M.J. REASONS FOR SENTENCE (Orally) Introduction [1] Corporal MacLeod pleaded guilty to the charge of behaving in a disgraceful conduct, which reads as follows: “FIRST CHARGE

Section 93 of the National Defence Act BEHAVE IN A DISGRACEFUL CONDUCT Particulars : In that he, on or about 8 August 2017, at or near Canadian Forces Base Gagetown, New-Brunswick, did touch the genitals of J.L.” [2] The Court having accepted and recorded a plea of guilty in respect of this charge, now finds you guilty of this offence.

[3] In the particular context of an armed force, the military justice system constitutes the ultimate means of enforcing discipline, which is a fundamental element of the military activity in the Canadian Armed Forces (CAF). The purpose of this system is to prevent misconduct or, in a more positive way, promote good conduct. It is through discipline that an armed force ensures that its members will accomplish, in a trusting and reliable manner, successful missions.

The military justice system also ensures that public order is maintained and that those subject to the Code of Service Discipline are punished in the same way as any other person living in Canada. [4] Concerning the sentence to be imposed by the Court, the prosecutor and the offender’s defence counsel presented a joint submission.

They recommended that the Court impose a severe reprimand and a fine in the amount of $3,000. [5] The circumstances of the offence were presented to the Court through a Statement of Circumstances read by the prosecutor and for which the offender recognized these facts as conclusive evidence. This Statement of Circumstances reads as follows: “Statement of Circumstances ( Queen’s Regulations and Orders for the Canadian Forces , art. 112.51(3)) 1 . At all material times, the offender, Corporal (Cpl) MacLeod, was a member of the Reserve Force, Canadian Armed Forces, employed within the 36 Combat Engineer Regiment.

This unit’s headquarters are located in Shearwater, Nova Scotia. 2 . In August 2017, the offender and J.L., also a member of the Reserve Force, were working on a Class A contract with the Infantry School at CFB Gagetown, New Brunswick. 3 . The offender and J.L. were quartered in building D27 on the base. Attach to this building, is a large deck with a picnic table under a gazebo. This location is used, by the building’s occupants, as a social gathering and smoking area. 4 . On the evening of 7 August 2017, J.L. consumed multiple alcoholic beverages and was intoxicated. 5 .

At around 01:00h on 8 August 2017, she left her room to have a cigarette on the deck of building D27. She was only wearing a “house coat” or bathrobe. 6 . She discovered that the offender and Cpl Bisson, another reservist, were on the deck. 7 . At one point, J.L. laid down on the deck beside the picnic table where the three were sitting. She started to doze off. 8 . By his words and behaviour, the offender appeared to want to engage sexually with J.L. but she refused and mentioned that she had a boyfriend. 9 . The offender also tried to convince Cpl Bisson to have a “threesome” with J.L. and him.

But Cpl Bisson refused, since he had known for a few days that she had a boyfriend and was not interested in having sexual interactions with any other person. 10 . A bit later, Cpl Bisson left the vicinity to get a beer from his car. At that moment, the offender, who was by then knelling beside J.L., stated to her that he would help her relax and started to rub her right leg. 11 . J.L. said: “no, don’t”, as she kept dosing off. 12 . When Cpl Bisson returned with the beer, the patio door slammed and made a loud noise which jolted J.L. She awoke to find that

the offender was touching her vagina. 13 . J.L. told the offender: “is that what you do, take advantage of drunk girls”. The offender replied that he was only trying to make her feel comfortable. 14 . J.L. left the premises and reported the incident shortly thereafter. 15 . J.L. never consented to be touched as such. 16 . The offender knew J.L. did not want to be touched as such.” [6] Defence counsel introduced an Agreed Statement of Facts that reads as follows: “AGREED STATEMENT OF FACTS 1. Cpl MacLeod is 22 years old and enrolled in the Canadian Armed Forces on 02 July 2013 as a reservist. 2.

Cpl MacLeod is a first-time offender and does not have a criminal record or conduct sheet. This Standing Court Martial constitutes his first appearance before a Military Tribunal. 3. Shortly before the pretrial applications were to be heard, Prosecution and Defence Counsel agreed on a tentative agreement. Once informed of the position, Cpl MacLeod instructed his Defence Counsel to resolve this matter efficiently and to proceed with a guilty plea. Prosecution was engaged quickly thereafter. 4. This guilty plea is an economy of time and resources for the Military Justice System.

CPL MACLEOD’S PERSONAL CIRCUMSTANCES 5. The accused has sustained multiple injuries throughout his military career, including a lower back (sciatic nerve) injury and most importantly nerve damage through his neck and shoulders, to the bottom of his left arm. 6. Cpl MacLeod has also sustained hearing loss, tinnitus, in both hears from dealing with explosives as an engineer. 7. He was prescribed multiple medication to deal with the pain when he was initially injured in British Columbia, during Ex-Paladin Response, a breaching exercise for engineers in December 2016. 8.

Following these injuries, Cpl Macleod’s mental and physical health progressively deteriorated. 9. Cpl Macleod was then diagnosed with Major Depressive Disorder and anxious distress, by Dr. Glen Worth, his family physician. 10. Cpl MacLeod was prescribed medication solely for the mental health by his physician but was not prescribed any medication for his physical pain.

11. Due to the increasing pain, Cpl MacLeod had to turn to narcotics, specifically Percocet, to cope with the issue. This use ultimately led to his narcotic addiction. 12. Cpl Macleod built a tolerance to Percocet which led him to a more powerful painkiller, Hydromorphone, to deal with the increasing pain. 13. At one point, Cpl MacLeod was spending approximately $100 daily to pay for his Hydromorphone addiction. 14. The combination of physical and mental health issues led to substance abuse of opioids as a coping mechanism. 15. On 28 August 2019, Dr. Glen Worth ordered an MRI for Cpl MacLeod. 16.

This request was then processed and formally ordered by the Chronic Pain Clinic of the Nova Scotia Health Authority on 24 October 2019. 17 . At the end of the month of October 2019, Cpl MacLeod’s sister called the Psychiatric unit of the Cape Breton Mental Health Hospital. 18 . Following the call, Cpl MacLeod was admitted to the Psychiatric unit and put on a “72-hour hold” for his well-being. 19 . Cpl MacLeod was then assessed by the psychiatric nurse, and seen by Dr. Brian Foley at the Cape Breton Mental Health Hospital. 20 .

On or about 10 November 2019, Cpl Macleod began his treatment through the Cape Breton Regional Hospital, which included weekly appointments at the hospital and daily doses of medication forcing him to attend the Black Diamond Pharmacy every day. 21 . Cpl MacLeod’s medical treatment included a daily dose of Suboxone to deal with his narcotic addiction. 22 . This medication cost Cpl MacLeod approximately 17$ every day and was not covered by the provincial drug plan of Nova Scotia. 23 . Once the treatment was completed, Cpl MacLeod had to undergo a battery of blood tests.

These test were necessary and essential to determine the next steps in Cpl MacLeod’s treatment. 24 . The results were disclosed to Cpl MacLeod on 13 Mar 2020. 25 . The results allowed Cpl MacLeod to be properly treated and medicated. 26 . Cpl MacLeod has now been sober since 13 November 2019, and was finally prescribed proper medication on 13 Mar 2020. 27 . Cpl MacLeod was prescribed Cymbalta to treat his Major Depressive Disorder and his Generalized Anxiety Disorder. It is also medication use for the treatment of fibromyalgia and neuropathic pain.

28 . Additionally, Cpl MacLeod was also prescribed Ativan to deal with his anxiety. 29 . This set of medication has now removed Cpl MacLeod of any opioid-based medication and will help him deal with any residual issues stemming from his addiction. 30 . Cpl MacLeod has a scheduled appointment to see a psychotherapist on 23 March 2020. The referral was made by Dr. Glen Worth, his family physician. 31 . Cpl MacLeod also underwent X-rays and an MRI on 12 Mar 2020. The purpose of this MRI is to confirm any and all injuries to Cpl MacLeod’s spine, neck and shoulders. 32 .

The results are required by Veterans Affair Canada as they need a clear diagnosis to grant him any benefits. 33 . Additionally, the result of this MRI is required to obtain a fruitful appointment with a neurologist. The appointment has not been confirmed, but has been requested. The neurologist will test Cpl MacLeod’s nerves. 34 . Cpl MacLeod is also awaiting for his appointment for a CT Scan to determine the extent of the nerve damage he has sustained 35 . These additional results and his future appointments are all necessary for Cpl MacLeod’s treatment and his Veterans Affair Application. 36 .

Cpl MacLeod was not placed on any type of Administrative Actions following the incident. 37 . Cpl MacLeod currently has a good relationship with his partner and resides with his father. Both of them support Cpl Macleod’s treatment and rehabilitation. 38 . At the present moment, Cpl MacLeod cannot physically work due to his injuries. 39 . Cpl MacLeod, nonetheless, has a landscaping company, Cottage Landscaping, with his father, and has income through the company. 40 . Cpl MacLeod is currently a volunteer firefighter and has been since the age of 16. 41 .

Cpl MacLeod also has intention of going back to school and complete a degree in computer sciences.” [7] Additionally, a victim impact statement was read in court by the victim and was considered by the Court with all other circumstances. [8] Although this Court is not bound by the joint recommendation made by counsel, it is generally accepted that the sentencing judge should depart from the joint submission only when it is contrary to the public interest or will bring the administration of justice into disrepute, as stated by the Supreme Court of Canada in R. v. Anthony-Cook , 2016 SCC 43 , at paragraph 32 .

The only situation where the court would depart from the recommendation is where the proposed sentence would be viewed by reasonable and informed persons

as a breakdown in the proper functioning of the justice system and this includes courts martial. It is the responsibility of lawyers, in these circumstances to provide to the Court a full account of the offender’s situation and of the circumstances of the offence in a joint submission. Here, the Court is satisfied with the information provided by counsel.

They provided sufficient and detailed information for the Court to appreciate the joint submission arising from their discussions in the specific context they were dealing with. [9] In this case, the principles and objectives of maintaining public trust in the CAF as a disciplined armed force, denunciation of unlawful conduct, deterrence of offenders and other persons from committing such offences or anything similar, providing reparations for harm done to victims or to the community and promoting a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community were an integral part of counsel’s discussions and the basis for their joint submission. [10] It must be reminded that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender as it is stated at

section 203.2 of the National Defence Act . [11] Corporal MacLeod is 22 years old. He enrolled in 2013 and had a normal career progression with a combat engineer unit of the reserve force in Sydney, Nova Scotia.

In the course of an exercise, he experienced a serious accident that impacted on him physically and psychologically. [12] As a matter of coincidence and as explained in her victim impact statement, the victim also experienced some kind of and coincidently, they met in Gagetown in the circumstances described in the Statement of Circumstances and the incident occurred. [13] As clearly stated by the victim, at that point respect for brothers of arms was lost. And the loss of confidence was confirmed. This is exactly what the CAF wants to avoid.

Trust among peers is the foundation of an efficient armed force. [14] There are three things that I would like to discuss in my decision; the first being the delay. And as put by the victim in her statement, it is very unfortunate that this case was caught in a legal debate that lasted about a year. Nobody had control of it and as soon as it was finalized, things found their way to be discussed and settled. However, it clearly impacted on the victim. And even if I did not have any control on this, I would like to say that it is unfortunate, and on behalf of the military justice system, I apologize.

This matter could have been dealt with more expeditiously, however nor the prosecution, the defence or even the judiciary had control over the legal debate that occurred in the military justice system, but clearly it impacted on people involved in the matter before this court. [15] I want to talk about the victim. As I mentioned, I would like to thank her for having changed her mind and decided to share and express her concerns. She told eloquently and with confidence to the court not only what were the impacts on her, but also how she was able to recover from that.

And I was pleased, despite the fact this thing happened, that she was able to become stronger. However, I would agree that for any human being it is not necessary to have to go through such things to become stronger in life, but fortunately, she recovered from that. I could not express better than her, how things unfolded for her. And it is unfortunate that she had to change her career.

I think she could have been a great asset for the CAF in the way she see things, but also I encourage her and support the fact that she made choices in her life and she is still young and be able to contribute to the Canadian society, but also to live quietly despite this incident. [16] I would also like to thank her parents who have taken the time to come here and support her in this difficult time. [17] I would also like to talk about the offender, Corporal MacLeod.

His counsel convinced me that it was not necessary for me to issue a warrant of arrest because Corporal MacLeod committed to be in Gagetown, despite the fact that he was not there at the opening of his court martial on Thursday. Corporal MacLeod should thank his counsel for believing in him to the extent that he was able to convince me that he would face his responsibility, which he did.

Pleading guilty, as mentioned by your counsel, means that he recognized full responsibility for what he did and accepts the consequences for what he did. [18] He also recognized this breach of trust he had on that evening towards one of his female peers. And, as such, I also understand that he wanted to take a grip on his life and he was able to manage things in a way that he could identify what problems were and he worked hard to get rid of his addiction and find other ways to settle the physical and psychological issues he have faced since the accident. For that, I encourage him to continue in that direction.

I think that he is just getting positive things and as mentioned by his defence counsel, the possibility to reoffend is very, very low He is in good hands from a medical perspective and I just support and encourage the fact that he does this and continues to do this.

[19] I will then accept the joint submission made by counsel to sentence Corporal MacLeod to a severe reprimand and a fine in the amount of $3,000, as it is not contrary to the public interest and will not bring the administration of justice into disrepute. [20] I also understand that it will allow people involved in this matter to turn the page and continue with their respective lives. FOR THESE REASONS, THE COURT: [21] FINDS Corporal MacLeod guilty of the first charge contrary to

section 93 of the National Defence Act for behaving in a disgraceful manner. [22] SENTENCES the offender to a severe reprimand and a fine in the amount of $3,000, payable in ten equal monthly instalments of $300 commencing on 1 May 2020. If the remaining amount is not paid in full because he is released from the CAF, then the remaining amount will be entirely due to the CAF. Counsel The Director of Military Prosecutions as represented by Major P. Germain Captain M. Melbourne, Defence Counsel Services, Counsel for Corporal G.D.W.M. MacLeod