R. v. Beswick, 2015 CM 3005

COURT MARTIAL Citation: R. v. Beswick , 2015 CM 3005 Date: 20150226 Docket: 201403 Standing Court Martial Canadian Forces Base Halifax Halifax, Nova Scotia, Canada Between: Her Majesty the Queen - and - Able Seaman C.G. Beswick, Offender Before: Lieutenant-Colonel L.-V. d’Auteuil, M.J. REASONS FOR SENTENCE (Orally) [ 1 ] Able Seaman Beswick, having accepted and recorded a plea of guilty in respect of the first and third charge, then the court now finds you guilty of those charges.

Also, considering that the fourth charge is alternate to the third charge, I then direct that the proceedings on this alternate charge be stayed. Finally, considering that the Court found you not guilty on the second charge, then the Court has no other charges to deal with on this matter. [ 2 ] We are at the sentencing phase where it is up to the judge presiding at the court martial to determine sentence. [ 3 ] The fundamental purpose of sentencing in a court martial is to ensure respect of the law and the maintenance of discipline.

However, the law does not allow a military court to impose a sentence that would be beyond what is required in the circumstances of the case. In other words, any sentence imposed by a court must be adapted to the individual offender and constitute the minimum necessary intervention since moderation is the bedrock principle of the modern theory of sentencing in Canada. [ 4 ] Here, the prosecution suggested to me to impose to the offender, as a matter of sentence, four months’ imprisonment and a

reduction in rank. On behalf of the offender, defence counsel recommended that a fine in the amount of $1,000 be imposed or, in the alternate, if I come to the conclusion that incarceration is appropriate in the circumstances, to sentence the offender to fourteen days’ imprisonment and to use my authority under

section 215 of the National Defence Act to suspend the carrying into effect of that sentence. [ 5 ] When imposing a sentence, a judge must take into consideration some objectives and precedents. As stated by defence counsel yesterday, the court martial decision in Tupper clearly stated that military judges must use those objectives and principles listed at sections 718 , 718.1 , and 718.2 of the Criminal Code , in addition to the reference we get at

Article 112.48 of the Queen’s Regulations and Orders (QR&O). [ 6 ] So, concerning the objectives, the Court has considered the following: (

a) to protect the public, which includes the Canadian Forces; (

b) to denounce unlawful conduct; (

c) to deter the offender and other persons from committing the same offence or offences; (

d) to separate offenders from society where necessary; and (

e) to rehabilitate and reform offenders. [ 7 ] Also, there are some principles that I took into consideration: (

a) A sentence must be proportionate to the gravity of the offence; (

b) A sentence must be proportionate to the responsibility and previous character of the offender; (

c) A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

d) An offender should not be deprived of liberty, if applicable in the circumstances, if less restrictive sanctions may be appropriate in the circumstances. In short, the court should impose a sentence of imprisonment or detention only as a last resort as it was established by the Court Martial Appeal Court of Canada and the Supreme Court of Canada decisions; and lastly (

e) all sentences should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [ 8 ] As a matter of circumstances, on 22 March 2013, the Canadian Forces National Drug Enforcement Team (NDET) was proceeding with a surveillance operation. They made a vehicle stop of Master Corporal Pollett on that day and seized seven grams of cannabis.

They learned from Master Corporal Pollett that he got this quantity of cannabis from Able Seaman Beswick on that same day and that the transaction had occurred as a result of earlier text messages for planning it. [ 9 ] Reality is that Master Corporal Pollett learned through another sailor that he could get this drug through Able Seaman Beswick. So, further to that vehicle stop, a search warrant was executed where Able Seaman Beswick was residing. In the room he occupied at that time, brass knuckles were found in a closed backpack located in the back of his closet.

[10] I am of the opinion that sentencing in this case should focus mainly on denunciation, specific and general deterrence.

It isimportant to remember that the principle of general deterrence means that the sentence should deter not only the offender fromreoffending, but also to deter others in similar situations from engaging in the same prohibited conduct. [11] As a matter of principle on sentencing in a case of trafficking, I think it is important to remind people that the Court MartialAppeal Court articulated clear reasons why the involvement of drugs in a military environment must be treated as a very serious matter.In 1985, in its decision of R. v.

MacEachern, (1986) (CMAC), 24 C.C.C. (3d) 439, at page 444, the court said: Because of the particularly important and perilous tasks which the military may at any time, on short notice, be called upon to performand because of the teamwork required in carrying out those tasks, which frequently involve the employment of highly technical andpotentially dangerous instruments and weapons, there can be no doubt that military authorities are fully justified in attaching very greatimportance to the total elimination of the presence of and the use of any drugs in all military establishments or formations and aboard allnaval vessels or aircraft.

Their concern and interest in seeing that no member of the forces uses or distributes drugs and in ultimatelyeliminating its use, may be more pressing than that of civilian authorities. Essentially, the Court Martial Appeal Court told us that trafficking in drugs in the military is a serious offence, and this Courttotally agrees with this affirmation. [12] In addition to the application of this principle, I would like to quote a paragraph from the decision of R. v.

Humphrey, 2011CM 1009, a decision by the Chief Military Judge, Judge Dutil, where he clearly puts the approach to be taken a trial military judge whiledealing with trafficking offences: The Court Martial Appeal Court and numerous courts martial have constantly held that the use and the trafficking of drugs is moreserious in the military community because of the very nature of the duties and responsibilities of every Canadian Forces member inensuring the safety and the defence of our country and of our fellow Canadian citizens.

The military community cannot tolerate breachesto its strict and well-known policy prohibiting the use of illicit drugs. However, these broad statements must be applied in the context ofindividual cases and the appropriate sentencing principles and objectives. Which leads me to affirm here, as mentioned by your defence counsel, that sentencing is still an individualized process whichmust always be determined in its own context. [13] As a matter of deciding a fit sentence in this matter, I have considered the aggravating and mitigating factors. As a matter ofaggravating factors, I considered the following: (

a) The objective seriousness of the offences, the offence of trafficking in a substance, which is here, cannabis, attracts amaximum punishment in accordance with the provisions of five years less a day, as I have explained to you, and the offence ofpossession of a prohibited weapon, which has a maximum punishment of five years. (

b) From a subjective perspective about the seriousness of these offences: i. I will use the words suggested by the prosecutor, “petty retail” or “petty retailer.” You wereknown as providing drugs among sailors. This is what I got from the circumstances, and you were doing this in order to obtain somethingin exchange, here being money. I cannot consider this as being, for sure, as social trafficking and I do not consider this as beingaccommodation of some of your peers in these circumstances.

Neither does it qualify as a commercial operation in the sense that, whenyou look at the drugs seized, there is not a large quantity of it, which indicates that it was not done on a large scale, at least from thecircumstances, but it is still, for me, an aggravating factor in these circumstances; and ii. Also, there is the premeditation, which is an important part of what happened. The purchasemade by Master Corporal Pollett was planned. I think the text messages indicate clearly that it was not on the spur of the moment that hewent to the place where you were residing and decided to buy some drugs from you.

Essentially, he got your name, approached you, andconfirmed that he was able to do it, so there was some planning in these actions and I have to consider this as an aggravating factor.

(

c) There is the fact also that this transaction involved other military members. Essentially, by your actions, you contributed and put at stake the security, the safety and the operations of the Canadian Forces. At what level, that is another matter, but it was, I would suggest, the starting point. Putting drugs in the system, as you heard me, may make the security and safety of others a concern, especially if they are called on short notice to do things, so I have to consider that. (

d) Also, about the brass knuckles; you had possession of something prohibited without the necessary authorization. That is the basis of it and I have to consider it as an aggravating factor. (

e) Finally, there is your conduct sheet. As mentioned by the prosecutor, it is a conduct sheet where the convictions on it have nothing to do with what I am dealing with today as a matter of charges. The nature of the charges are not the same on the conduct sheet, but they disclose, at least, that you had some issues with discipline and authority, so, in that sense, I consider this as aggravating. Essentially, you disclosed by your actions a lack of integrity and responsibility. You showed disrespect at all levels towards your peers, your superiors, chain of command, and also disrespect for the policy on drugs.

People had confidence in you. You saw how the chain of command reacted on that matter; they lost it very quickly. About your peers, I am sure that some were surprised by your actions and they lost confidence. [ 14 ] I have also considered some mitigating factors: (

a) First of all, there is your guilty plea. What it indicates to me is that you are taking full responsibility for what you did. It expresses remorse, but there is more to that. Through the testimony of your common law wife, Ms. Peterson, she clearly articulated the fact that you realized, not on the spot, but during the time that elapsed since the commission of the offence, what really happened and she expressed the fact that maybe, in the beginning, you put the blame on others, but you realized quickly that you were responsible for your own actions. So, in addition to the fact that you pleaded guilty, this is a huge mitigating factor for me. (

b) I cannot put aside the fact that your performance as a sailor and a Naval Combat Information Operator (NCI Op) has been excellent and you kept your focus on what you had to do in the military despite your actions outside of the military at the time. I think your supervisors appreciated the work you did while you were in the military. (

c) There is also your age and career potential as a member of the Canadian community and you already disclosed that. It has to be considered as a mitigating factor because you are not giving up. To the contrary, you decided, “Okay, I am not part of the military community anymore, but it does not mean that I am not part of society anymore,” and you did something with your life. And, considering your young age, you are at a starting point, in some way, in your life, starting a family; I think it has to be considered as a mitigating factor in the determination of a fit sentence. (

d) It may be specific to me but, personally as a military judge, I considered the fact that you faced this court martial as a mitigating factor because it has some deterrent effect on you and on others. A court martial is not something that happens very often and when it does happen, it is a moment where people take time to think about their own actions. And it may influence, in the future, the way they will behave facing the same challenges, so it is mitigating, from my perspective. (

e) There is also the fact that you were released from the Canadian Forces. No matter what the number and letter attached is, 4B or 2A, my understanding of the situation, through the facts brought before me, is that because of your actions, you were released from the Canadian Forces, so there’s a correlation between what you did and the consequences. For me, even if it is done administratively and it is not a sentence per se , from a disciplinary perspective, it is still a direct consequence of your actions, and it must be considered as a mitigating factor by me. (

f) Finally, there’s the fact that you turned your life around, once released from the Canadian Forces. As I mentioned earlier, you accepted responsibility for what you did. You changed your life in many ways, according to the testimony of Ms. Peterson, and you changed it for the better. You took additional responsibilities as an individual, and, from my perspective, you learned how to get respect from others and you have respected others, so you have become a solid asset for society. [ 15 ] Now, what about incarceration, as suggested by the prosecution?

Both counsel made excellent representations regarding that issue but, at the end of the day, parity is a factor that I have to consider amongst others, therefore, my main concern when I left yesterday was about what the case law says about such a situation. I reviewed a number of court martial cases that were put to me. I did not review

all of them, but I would just list those I looked at: Constantin , Humphrey , Jacobs , Cheston , Boivin , McKinnell , Hoddinott , Hebert- Painchaud , some of my own decisions such as Masserey , Tardif , Vezina , Noah , St-Onge , Beek , and Leading Seaman Ennis .

Some of those decisions involve strictly the use of cannabis; some of those decisions involve trafficking in cannabis, and some others involve trafficking in cocaine. [ 16 ] From those decisions and the position of the Court Martial Appeal Court regarding trafficking in a substance, I derived that use or possession usually attracts a fine or a reprimand and a fine. There are some exceptions to this, depending on the circumstances.

The most well-known is my decision in St-Onge , which ended up at the Supreme Court of Canada level despite it having been a guilty plea, concerning the use of cannabis for a period of two years. It was not just an event of a single day; it extended over a two-year period, with some other charges for which the offender pleaded guilty, one in relation to possession of something prohibited.

So, it was the exception, in a matter of use or possession. [ 17 ] I also reviewed social trafficking, which is at the bottom of the scale as a matter of seriousness regarding trafficking, and it usually calls for a reprimand and a fine or a reduction in rank and a fine. For more serious matters in trafficking, it usually calls for incarceration; not always, as it is always a matter of circumstances but it usually calls for incarceration in order to reflect the principle of denunciation and general deterrence.

That is the general view from the case law perspective. [ 18 ] So, I look at all the circumstances, for sure I made consideration for objectives and principles, especially denunciation and general deterrence; also, the type of trafficking and, as I mentioned, it is more than accommodation from my perspective; and, I also considered the aggravating and mitigating factors in the circumstances. I came to the conclusion that the minimum necessary intervention to be done by this Court aligns with incarceration.

I cannot depart from what it is indicated by case law, so I will agree with the prosecution that incarceration is the minimum necessary intervention that must be imposed by me. [ 19 ] Now, about the type of incarceration, we have two types; there is detention and imprisonment.

In such a case, trafficking usually attracts imprisonment and considering also the purpose of detention which is to re-instil some basic principles from a military perspective to soldiers, aircrew members or sailors, detention would not have any significant effect in view of the fact that you have been released from the Canadian Forces, so I have to consider imprisonment in these circumstances. [ 20 ] It has been suggested to me by the prosecution that incarceration should be combined with reduction in rank. In my decision of Moriarity , I reviewed the purpose of such a punishment.

I looked at the Court Martial Appeal Court decision of R. v . Fitzpatrick , [1995] C.M.A.J. 9 and also the decision of Sinclair v. R. , 2010 CMAC 4 , especially at paragraph 39 : A reduction in rank is an important tool in the sentencing kit of the military judge. It signifies more effectively than any fine or reprimand that can be imposed the military’s loss of trust in the offending member. That loss of trust is expressed in this case through demotion to a position in which the offenders have lost their supervisory capacity.

So, I still come to the conclusion that reduction in rank is a purely military sentence that reflects the loss of trust in the offending member. [ 21 ] I do not see in this case how it would have application, especially since Able Seaman Beswick was not occupying a leadership position or a function that would merit it. I think incarceration reflects the principle of deterrence, especially denunciation and general deterrence, and the addition of reduction in rank in these circumstances of the case adds nothing to that principle.

In fact, it goes beyond that, so I do not see relevance to impose such a punishment; however, I think a fine would be appropriate in the circumstances and I would add this punishment to imprisonment. [ 22 ] Now, what about the length of imprisonment? Again, I reviewed all those cases and they indicated to me that the nature of the substance impacted greatly on the length. Trafficking in cocaine has attracted a more serious punishment. In such a situation, from an objective-seriousness perspective, the maximum punishment is life imprisonment.

So, it is just a matter of logic that cocaine attracts a more serious punishment than cannabis, which carries a maximum punishment of five years less a day. [ 23 ] I also have to consider the other charge, because I am passing one sentence for both charges, where the maximum punishment for possession of a prohibited weapon is also five years. So, I have seen decisions dealing with cocaine ranging from four months to nine months to a year; I imposed three years, in a case in Gagetown, for large-scale trafficking in cocaine by a military member.

[ 24 ] In these circumstances, what I have seen is a range between thirty and sixty days, sometimes forty-five, so it is something in that range and, from my perspective, sixty days would be a fit sentence as a matter of imprisonment. Also, there is the fine, and I think, as suggested by defence counsel, $1,000 is appropriate and he expressed it, and I totally agree with him, that having to pay $100 every month for ten months is part of the sentence.

It is a reminder, for at least ten months, of the consequence of his actions. [ 25 ] I still have to deal with two things: first, is suspension, and the other is the weapons prohibition order. So I will start with suspension, something that I raised during the prosecutor’s address, and I got comment from the defence counsel on that issue. [ 26 ] Able Seaman Beswick, it has been suggested by your counsel that I suspend the sentence of sixty days’ imprisonment by means of the power that I can exercise under

section 215 of the National Defence Act because it is warranted on account of the exceptional circumstances disclosed by the evidence. [ 27 ]

Section 215 of the National Defence Act reads as follows: Where an offender has been sentenced to imprisonment or detention, the carrying into effect of the punishment may be suspended by the service tribunal that imposed the punishment. [ 28 ] The suspension of a punishment of imprisonment is a discretionary and an exceptional power that may be exercised by a service tribunal including a court martial. This power is different from the power provided by

section 731 of the Criminal Code , which allows a civilian court of criminal jurisdiction to suspend the passing of a sentence while subjecting an offender to a probation order or the power provided by

section 742.1 of the Criminal Code on imprisonment with conditional sentencing, which allows a civilian court of criminal jurisdiction to sentence an offender to serve a punishment of imprisonment in the community. There are no particular criteria for the application of

section 215 of the National Defence Act . [ 29 ] Over the last five years, I would say at least two or three times every year, I have been asked to exercise this discretionary power. And, I came to the conclusion, in absence of any criteria, that if the offender demonstrates on a balance of probabilities that his particular circumstances or the operational requirements of the Canadian Forces justified the necessity of suspending the sentence of imprisonment or detention, the court will make such an order, and, in fact, I will make such an order.

However, before doing so, I will have to consider if I come to the conclusion that I will suspend the carrying into effect of the sentence of imprisonment or that this suspension would undermine the public trust in the military justice system. If I find that it would not, then I will make the order. [ 30 ] What I have seen from the evidence presented to me on sentencing is once you were released from the Canadian Forces in February 2014, you took control of your life.

You made substantial changes, meaning that you seriously contemplated the environment you were living in and reduced your circle of friends and, probably, network, in order to get back on track, more of your own track. You decided to go to school, you succeeded well, and you found work. Essentially, you took responsibility for not just what you did but also for your future. You met, what I would qualify in this case, a significant other, and the word “significant” has, I think, a lot of meaning here for me.

She helped you mature in many ways; she helped you, but she did not oblige you to do all the things you did, it is my understanding. You made that decision. It belongs to you, to nobody else. [ 31 ] Essentially, you rehabilitated yourself and “rehabilitation” has not been referred to in this trial, but I am referring to it because it is part of the sentence and it is a principle on sentence. People make mistakes but they can learn from their mistakes; they can make decisions about their own life and what they want to do and the way they want to do it. You made one.

These circumstances, I would say, are very similar to other situations such as those in my decisions in Tardif and Masserey where members of the Canadian Forces were released and where it took a while, because you heard your defence counsel mentioning delay. He said there is a delay here; we didn’t get an explanation. I do not think an explanation is necessary but you took advantage of this delay. You imposed on yourself the fact, “I will do something with my life,” and you have done it so far. I do not pretend to know about the future, but you have done it.

And for me, it discloses what I qualify as particular or exceptional circumstances that would justify me to suspend the sentence of imprisonment. [ 32 ] Now, as I mentioned, there is a second step I have to go through because it is one thing to say what the criteria are but now I have to proceed with the analysis.

I have come to the conclusion that clearly the public would find that if the Court does not suspend the sentence of imprisonment in the circumstances of this case, it would create, what I would call, an unbalanced situation between the application of sentencing principles of denunciation and general deterrence, on one side, and rehabilitation, on the other side.

[ 33 ] Public trust is also about the fact that justice, once in a while, can help to change things and you clearly illustrated that by your actions. Also, the public, I think, may easily understand that, in these circumstances, a mistake may lead sometimes to making something good from what happened, and you have done that.

So, I came to the conclusion that the public trust in the justice system will not be undermined by suspending the sentence of imprisonment. [ 34 ] Lastly, it may be of less interest for some people, but I think it is, from a legal perspective, something that I have to carefully consider, the weapons prohibition order. I raised that issue through the prosecutor, putting to him that arguing on one side that really serious circumstances call for a very serious sentence and, on the other hand, not asking for a weapons prohibition order in the context of the existence of

section 109 of the Criminal Code where such a weapons prohibition order is mandatory when trafficking offences are involved, is difficult to understand. I would say that it was one way of putting it, but that is not the only way to say it. Parliament made the decision to leave it as a discretionary power for a court martial to decide on this issue despite many amendments made to

section 109 of the Criminal Code when drug offences are involved. [ 35 ]

Section 147.1 of the National Defence Act makes it mandatory for the judge to give consideration to such an order, but it does not impose, and it is up to Parliament to make a decision to make it mandatory or not. In that perspective, because as I mentioned, there are many ways to say it, I do not see it as being the role of the court to usurp Parliamentary authority to decide why two different regimes exist, one for the military justice system and another for the criminal justice system in Canada. I do not think it is up to the judge to try to explain the difference but, rather, to apply them.

And there are maybe good reasons behind that; I don’t know, but what I know is what the provisions say, and what it says is that I have discretional authority to consider if it is appropriate or not to issue such an order. [ 36 ] So, from the circumstances of this case, clearly it disclosed that the prohibited weapon or the prohibited device was found in a place, but it had not been used or it was not part of any transaction related to drugs.

Those two things are not connected; it is impossible to make any link, so for me, it just makes sense, with the recommendation of both counsels, to not issue such an order because of the circumstances. Then, it is my conclusion that such an order is not necessary or desirable in the interests and the safety of any person or of the offender, and I will not make such an order. [ 37 ] Ms. Peterson took the stand; you called her as a witness. She basically stepped up for you. She came before me and clearly articulated what is the situation now and what she has seen so far.

I will put to you, no matter the result of this court martial, and I do not know what will happen in the future because we are all human beings, and I cannot say how a relationship will end up, but if your relationship ends someday, though, for sure, you have a good start, you owe her something and one day you may have to step up and do something for her. I do not know what might be the circumstances, but I hope you will remember this day, and if your relationship breaks down, I hope you will be there for her and you will step up. I do not know what life will bring, but I implore you to think about that.

FOR THESE REASONS, THE COURT: [ 38 ] FINDS you guilty of the first and the third charge; [ 39 ] FINDS you not guilty of the second charge; [ 40 ] DIRECTS that the proceedings against you be stayed on the fourth charge; [ 41 ] SENTENCES you to imprisonment for a period of sixty days and a fine in the amount of $1,000, payable in ten monthly instalments of $100 each, starting on 1 March 2015, and [ 42 ] SUSPENDS the carrying into effect of the sentence of imprisonment. Counsel: The Director of Military Prosecutions as represented by Lieutenant-Commander D.T. Reeves

Mr D. Bright, BOYNECLARKE LLP, Counsel for ex-Able Seaman C.G. Beswick