R. v. Schelder, 2014 CM 1002

COURT MARTIAL Citation: R. v. Schelder, 2014 CM 1002 Date: 20140128 Docket: 201367 Standing Court Martial Canadian Forces Base Esquimalt Esquimalt, British Columbia, Canada Between: Her Majesty the Queen - and - Leading Seaman J.F. Schelder, Offender Before: Colonel M. Dutil, Chief Military Judge REASONS FOR SENTENCE (Orally) [ 1 ] Leading Seaman Schelder has entered a plea of guilty for an offence of striking a superior officer contrary to s. 84 of the National Defence Act.

Counsel jointly recommend that the Court impose a sentence composed of a severe reprimand and a fine in the amount of $2,500 payable in 12 monthly instalments. [ 2 ] The circumstances surrounding the commission of the offence indicate that on Friday, 24 May 2013, personnel of Her Majesty's Canadian Ship Calgary held a fund-raising event at the Pacific Fleet Club at Canadian Forces Base Esquimalt. Master Seaman Silver was part of the team organizing this non-official event and attended the Pacific Fleet Club that evening to assist in setting-up and running the event.

Master Seaman Silver wore civilian attire throughout. Leading Seaman Schelder attended that event with Able Seaman MacKay. Leading Seaman Schelder arrived at approximately 2000 hours. Over the course of the evening, Leading Seaman Schelder drank a combination of beer and liquor and became heavily intoxicated. Counsel for Leading Seaman Schelder informed the Court that the offender had already started drinking prior to his arrival to the Pacific Fleet Club that night. Between 2100 and 2200 hours, Master Seaman Silver noticed Leading Seaman Schelder intentionally break a shot glass inside the Pacific Fleet Club.

Master Seaman Silver approached and spoke to Leading Seaman Schelder, requesting that he stopped that behaviour. Leading Seaman Schelder knew that Master Seaman Silver was a superior officer and readily complied. The rest of the evening went without any other incident until shortly after midnight on Saturday 25 May 2013, where Leading Seaman Schelder and his friend MacKay had withdrawn to just outside the building. At that time, Master Seaman Silver exited the building and saw both of them standing outside. He approached and talked to Able Seaman MacKay.

While they were speaking, Leading Seaman Schelder, highly intoxicated, circled around Master Seaman Silver and, without warning, grasped him with one hand to turn his body slightly and punched him once on the side of the head. Master Seaman

Silver collapsed to the ground, unconscious, and struck his head on the pavement. Schelder and MacKay left the scene leaving Silver behind. Leading Seaman Schelder was later arrested by the military police a short distance away. Master Seaman Silver was taken to hospital by ambulance, where he was examined and released. He attended the Canadian Forces Health Services Centre Pacific on Monday 27 May 2013, at which time he was diagnosed with post-concussion syndrome and was granted seven days sick leave.

Upon re- examination on Monday 3 June 2013, he was returned to duty half days only, with medical employment limitations of self-directed physical training, no drill or parades and no lifting over 5 kilograms. This ran for an additional seven days until he returned to full duties on 10 June 2013. The victim suffered regular headaches for approximately seven weeks following this incident. [ 3 ] I must now determine what shall be an appropriate, fair and just sentence.

In the context of sentencing an offender under the Code of Service Discipline, the Court Martial Appeal Court has expressly stated that a court martial should guide itself with the appropriate sentencing purposes, principles and objectives, including those enunciated in sections 718.1 and 718.2 of the Criminal Code .

The fundamental purpose of sentencing at court martial is to contribute to the respect of the law and the maintenance of military discipline by imposing punishments that meet one or more of the following objectives: to denounce the unlawful conduct; to deter the offender and also others who might be tempted to commit such offences; to separate offenders from society, where necessary; to provide reparations for harm done to the victims or to the community; to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community; and, the reformation and rehabilitation of the offender. [ 4 ] The sentence must also take into consideration the following principles.

The sentence must be commensurate with the gravity of the offence, the previous character of the offender and his degree of responsibility. It should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. A court must also respect the principle that an offender should not be deprived of liberty if less restrictive punishments may be appropriate in the circumstances. Finally, the sentence will be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

In doing so, the Court must act with restraint in determining sentence and in imposing such punishment that should be the minimum necessary intervention to maintain military discipline. [ 5 ] The offence of striking a superior officer under s. 84 of the National Defence Act is a purely military offence that has no equivalence in Canadian Criminal Law. Respect of superior officers and subordinates are at the heart of military discipline, which is essential to the operational effectiveness of the Canadian Forces. It is a very serious offence that is punishable to a maximum of imprisonment for life.

The circumstances of this case are not the more serious, but they are sufficiently compelling to warrant a severe sentence. The joint submission proposed by counsel is within the range of sentences imposed for similar offences and is not lenient by any means. The Court has no ground to reject this proposal. [ 6 ] I now turn to the specific aggravating and mitigating circumstances of this case. The Court considers the following elements to be aggravating factors in the circumstances of this case: (

a) The objective gravity of the offence of striking a superior officer under s. 84 of the National Defence Act : As I have already stated, this is one of the most serious offence in Canadian Military Law because it is aimed at the heart of military discipline. In absence of compelling mitigating circumstances such as intimidation, provocation or previous assault by the victim to explain an over-reaction, anger and loss of self-control by the offender, a person found guilty of this offence would generally attract severe punishments (See The Hon. Mr. Justice Gilles Létourneau, Professor Michel W.

Drapeau, Military Justice in Action: Annotated National Defence Legislation , (Toronto: Carswell, 2011) at p. 205). (

b) The absence of contributing elements from the victim : The Court considers that the striking of Master Seaman Silver by Leading Seaman Schelder was unprovoked and gratuitous. The fact that he was reprimanded by Master Seaman Silver earlier that evening, with regard to his inappropriate behaviour in breaking glasses in the mess, cannot be used as an excuse for his subsequent assault on his superior.

Counsel for the offender also commented on the high level intoxication of Leading Seaman Schelder on the night in question that would explain why he may have thought that his friend MacKay was being threatened by the victim when Silver and MacKay were speaking outside. Leading Seaman Schelder recognized, through his counsel, that he had no reasons to believe that this was the case then. (

c) The consequences of the punch on the victim : lthough I agree with the comments made by Lamont M.J. in R v Hillier , 2007 CM 2002 , at paragraph 12 , to the effect that the degree of harm or injury is not the gravamen of the offence of striking a superior officer, it is nonetheless an important factor to be considered in light of all the circumstances surrounding the commission of that offence. Master Seaman Silver received one punch, but it had serious consequences. He suffered a concussion and he could not fulfil his military duties for approximately two weeks.

Master Seaman Silver suffered regular headaches for approximately seven weeks following this incident. Leading Seaman Schelder should consider himself extremely lucky that Master Seaman Silver did not suffer more serious injuries as a result of that punch when he fell to the ground hurting his head on the pavement. However, the consequences that resulted from the offence cannot serve to increase the sentence to a level that would take it outside of the range of what would be an adequate sentence.

(

d) The abandonment of the victim by the offender after the blow to the head : Leading Seaman Schelder and his friend left the scene immediately after the blow to head of the victim despite the fact that Master Seaman Silver collapsed on the ground, unconscious and struck his head on the pavement. The Court accepts as a fact that Leading Seaman Schelder was highly intoxicated at the time, but this conduct is nevertheless highly reprehensible. [ 7 ] The Court considers the following elements to be mitigating factors in the circumstances: (

a) The plea of guilty at the earliest opportunity : This is the most important mitigating factor in this case. Leading Seaman Schelder has accepted the entire responsibility for his actions and the evidence before the Court in support of his character and professional conduct since he has joined the Canadian Forces in 2008 satisfies the Court that his admission of guilt is a sincere expression of remorse. (

b) The performance of the offender in the Canadian Forces : The documentary evidence filed before the Court speaks highly of his level of professionalism and dedication to his career in the Canadian Forces. He is considered a strong performer who has constantly demonstrated a positive attitude. He enjoys a solid reputation from his superiors and his colleagues. There is no doubt that he has a strong potential and a bright future in the Canadian Forces. This incident appears to be out of character. (

c) The age of the offender : Leading Seaman Schelder is only 24 years of age. His record of service is very solid despite his young age. (

d) The apologies and the regrets of the offender : Although the apologies to the victim were transmitted through his counsel today, I accept the explanation of his counsel as to why Leading Seaman Schelder was not in a position to offer those apologies personally to the victim before today. However, I had the opportunity to observe the behaviour of Leading Seaman Schelder in court today and I am satisfied that his plea of guilty and his remorse are sincere. (

e) No previous disciplinary or criminal conviction : This is the first time that the offender is involved in the military or criminal justice system. He has no previous record. [ 8 ] The joint submission of counsel is adequate to promote the necessary objectives of sentencing required in this case, namely general and specific deterrence as well as the rehabilitation of a young hard working and dedicated professional with strong potential. I also agree with the prosecution and consider that a weapons prohibition order under

section 147.1 of the National Defence Act is not warranted. The prosecution did not apply to the Court for the issuance of an order authorizing the taking of bodily substances for the purpose of forensic DNA analysis under s. 196.14 of the National Defence Act as the offence under s. 84 of the Act is a secondary offence.

FOR THESE REASONS, THE COURT: [ 9 ] FINDS the offender, Leading Seaman Schelder, guilty of the offence of striking a superior officer under s. 84 of the National Defence Act. [ 10 ] SENTENCES the offender, Leading Seaman Schelder, to a severe reprimand and a fine in the amount of 2500 dollars payable in 12 equal and consecutive monthly instalments beginning on 15 February 2014. Counsel: Major J.G. Simpson and Lieutenant-Colonel S.D. Richards, Canadian Military Prosecution Services, Counsel for Her Majesty Mr C. Mackie, Suntok Mackie Barristers at Law, Counsel for Leading Seaman J.F. Schelder