R. v. Hoekstra, 2016 CM 3010

COURT MARTIAL Citation: R. v. Hoekstra , 2016 CM 3010 Date: 20160722 Docket : 201398 General Court Martial Canadian Forces Base Petawawa Petawawa, Ontario, Canada Between: Her Majesty the Queen - and - Corporal T.J. Hoekstra, Offender Before: Lieutenant-Colonel L.-V. d’Auteuil, M.J.

REASONS FOR SENTENCE (Orally) [ 1 ] Corporal Hoekstra, further to a change of your plea during the trial on 28 January 2016, the court accepted and recorded a plea of guilty in respect of the first charge, with the concurrence of the prosecution, on a less serious and included offence of possession of marihuana contrary to subsection 4(1) of the Controlled Drugs and Substances Act . The court also accepted and recorded a plea of guilty in respect of the third, fourth and twelfth charges.

Now, the court finds you guilty of these charges. [ 2 ] Considering that the second and fifth charges are alternative charges to the third and fourth charges, the court orders a stay of proceedings on the second and fifth charges. The remaining charges were withdrawn by the prosecution with leave of the court; there is no other charge for the court to deal with. [ 3 ] This trial has been a long trial for different reasons. It started on 8 June 2015 with some preliminary matters to deal with, and further to that, on agreement, a trial date was set for 26 January 2016.

It was during that period of time that you decided to change your plea during the trial. Since then, we are proceeding on sentence and it is, basically, the final day of this trial.

[ 4 ] 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 military activity in the Canadian Armed Forces. 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. [ 5 ] Here, in this case, the prosecutor and the offender’s defence counsel made submissions on sentence to be imposed by the court. The prosecution recommended that the court sentence Corporal Hoekstra to imprisonment for a period of 18 months and to dismissal from Her Majesty’s service.

Defence counsel suggested that incarceration could be appropriate in the circumstances; however, he put to the court that such punishment would be best served by a sentence of detention for a period of 60 to 90 days combined with a severe reprimand and a fine in the amount of $16,273.

Alternatively, he suggested that if the court decides that incarceration must be reflected by a sentence of imprisonment, the length of it should not go beyond 90 days and it should be combined with a reduction in rank to the rank of soldier. [ 6 ] The fundamental purpose of sentencing in a court martial is to ensure respect for 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. [ 7 ] In order to make its determination, the court shall consider one or more of the following objectives: (

a) to protect the public, which includes the Canadian Armed 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. [ 8 ] When imposing sentence, a military court must also take into consideration the following principles: (

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

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

c) the 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 and the Supreme Court of Canada decisions; and (

e) lastly, any sentence to be imposed by the court should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

[ 9 ] The court is of the opinion that sentencing in this case should focus on the objectives of general deterrence and denunciation. It is important to remember that the principle of general deterrence means that the sentence should deter not only the offender from reoffending, but also to deter others in similar situations from engaging in the same prohibited conduct. [ 10 ] Corporal Hoekstra joined the Reserve Force as an infantryman in 2002.

He then transferred to the Regular Force component, more specifically, the Canadian Special Operations Regiment (CSOR) in 2006 and was deployed at four different times to Afghanistan between December 2006 and July 2011.

He performed the tasks as platoon signaller, marksman and navigator while patrolling and performing long-range shooting in an operational and hostile environment. [ 11 ] During those deployments, Corporal Hoekstra went through various experiences: he was hit and injured during a friendly fire incident; he shot two male youth while on patrol and is still second-guessing whether there was a need to shoot them; on the day he did not go out on his regular patrol because he was sick, some members of his patrol were seriously injured when they stepped on an improvised explosive device (IED), resulting in him feeling guilty, which still haunts him to this day. [ 12 ] On at least one occasion he did save the life of one or more members of his patrol by shooting enemies that were threatening them while patrolling.

His leadership, communication skills and dedication caused him to be seen by his supervisors as a soldier having outstanding potential and to be promoted two years in a row, being appointed as master corporal. He was considered among the top infantry corporals in Canadian Special Operations Forces Command (CANSOFCOM) by his commanding officer in July 2012. [ 13 ] Despite that, during that same year, he found it hard to maintain the physical standards and was not prepared to continue mentally. He then decided to transfer to the Reserve Force.

Corporal Hoekstra’s last day in the Regular Force was 21 September 2012. [ 14 ] On or just before 8 August 2012, a CSOR ammunition technician noticed an ad on a specialized gun website, which was offering to sell Canadian Armed Forces ammunition. The seller was identified as being Corporal Hoekstra and, the day after, a complaint was made to the military police. [ 15 ] The military police gathered further information from the website.

On 10 August 2012, the military police executed a search warrant at Corporal Hoekstra’s house and an impressive quantity of firearms, magazines, ammunition, grenades, military pyrotechnics and other military equipment were seized from his garage and basement. [ 16 ] On 21 September 2012, Corporal Hoekstra was transferred with the Hastings and Prince Edward Regiment of the Reserve Force in Belleville, Ontario. However, he did not really show up at the regiment before 2015 because he was working in the province of Alberta.

When he showed up at the unit in early 2015, he was told that he was not welcome. [ 17 ] Considering the charges he was facing, he was relieved from performance of military duty on 20 November 2015 by his previous commanding officer, Lieutenant-Colonel McKinstry. [ 18 ] Corporal Hoekstra was reinstated of performance of military duty in May 2016 by the actual commanding officer of his unit, Lieutenant-Colonel Comeau, who made representations in a letter to the court. He explained his intent to retain and employ Corporal Hoekstra in his unit because of his personal skills and experience.

The commanding officer would like to employ him mainly in the development of others. Despite his lack of judgement in the past, he is confident that Corporal Hoekstra has matured to a level that would negate reoccurrence. [ 19 ] Some members and former members of the Canadian Armed Forces testified. They all recognized the great qualities of Corporal Hoekstra: hard worker, interpersonal skills, courage and professionalism.

He was clearly fit for the job as an operator with CSOR; however, considering the quantity, the nature and the period over which he would have gathered all the material found in his garage and basement, what he did was considered by them to be an ultimate act of disloyalty towards the unit, his peers and superiors, and to the core values he committed to defend and represent as a soldier. In short, they felt that Corporal Hoekstra betrayed his peers and dishonoured his unit. [ 20 ] At the end of the evidence case presented by the offender, the court asked if any consideration had been given to the

preparation and presentation of any kind of mental health assessment. While it was not really considered, defence counsel decided to request an adjournment in order to allow the preparation of such a report. The court allowed the adjournment in February 2016 and a report in writing was presented in July 2016. Its author, Dr Hogan, testified before the court. [ 21 ] In addition to the various incidents that occurred during his deployments, the psychologist, Dr Hogan, identified in her report some more personal, disturbing incidents to Corporal Hoekstra: (

a) A parachute landing onto frozen ground resulted in a broken leg and a fear of bleeding to death at that time; (

b) The death of a personal friend in Iraq. He was close to him. At that time, Corporal Hoekstra owned a house and he was often visited there by the friend. After the death of his friend, he became unable to live there and rented it out; and (

c) In October 2014, the house he was living in burned down, destroying all his possessions. During the fire, he exited the house to save his own life, but managed to re-enter and help other occupants to exit safely. [ 22 ] Dr Hogan presented a clinical report on the mental status of Corporal Hoekstra. She concluded, after two interviews with him and the administration of various psychological tests, the following: (

a) Corporal Hoekstra meets diagnostic criteria for Post-Traumatic Stress Disorder (PTSD); (

b) He meets diagnostic criteria for Major Depressive Disorder, Single Episode, Severe; and (

c) At the current time, a diagnosis of Alcohol Abuse Disorder, Mild, seems as a responsible diagnosis to balance his recent abuse history and his reported reduction in use. He needs to develop alternative coping strategies that are better for his well-being to replace his use of alcohol as self-medication. [ 23 ] Dr Hogan recommended that Corporal Hoekstra's issues with PTSD and depression be addressed through psychological treatment and discussion and that he seek help in order for him to monitor his alcohol use through a support program for alcohol abuse.

His situation shall be discussed with his family doctor and other appropriate health professionals and, clearly, no further military deployments shall be considered for him until he has significantly resolved his PTSD symptoms and he has management strategies sufficient to prevent further traumatization. [ 24 ] From a purely clinical perspective, considering that the military is closely linked to the identity of Corporal Hoekstra as a person, Dr Hogan suggested the court give careful consideration to taking him out of the military.

Also, as hunting and shooting are something that is clearly part of his personality, she suggested the court give careful consideration to making him unable to have access to or use all kinds and types of weapons. [ 25 ] Corporal Hoekstra testified before this court. He told the court that he has had a passion for hunting since he was a kid. He is attracted to wildlife and outdoors activities. Shooting, from a competitive or training perspective, is also clearly something he likes to do.

He is not compulsively attracted to firearms. [ 26 ] Corporal Hoekstra told the court that his entire adult life has been with the Army. He was in cadets before he joined the Reserve Force when he was 17 years old and spent some time with the Regular Force before going back to the Reserve Force. [ 27 ] Corporal Hoekstra had difficulties sleeping just prior to the search and seizure in 2012 and still has difficulties. He used marihuana for his own use at that time in order to help him relax and sleep better. He stopped consuming marihuana after the search.

[ 28 ] He is ashamed of what he did and he wrote a letter of apology to the members of CSOR where he expressed his deepest regret for what he did and the impact it had on them. He also recommended to them in the same letter to seek professional help instead of self- medicating if they know they have personal problems. [ 29 ] While questioned by the court, Corporal Hoekstra clearly stated that he did not seek counselling of any sort because he did not want it to be used as an excuse for his actions.

He could not explain why he gathered so much equipment and ammunition in his house, other than all those things were part of his identity as a soldier for which he wanted to keep and hold on to. He never realized that he had so many things accumulated and he never really paid attention to the safety concerns in which those items were stored.

He clearly stated to the court that there is no chance of him being in such a situation in the near future. [ 30 ] He has abided to the restriction imposed on him concerning firearms for the last four years and he has only hunted with a bow. [ 31 ] Once this matter is over, Corporal Hoekstra is contemplating staying with the Reserve Force, if possible, starting a business or ultimately going back to Alberta where he has found jobs in the past. [ 32 ] In arriving at what the court considers a fair and appropriate sentence, the court has considered the following mitigating and aggravating factors: (

a) The court considered, as aggravating, the objective seriousness of the offences. Three of the offences you were charged with were laid in accordance with

section 130 of the National Defence Act for possession of marihuana contrary to subsection 4(1) of the Controlled Drugs and Substances Act , for knowledge of unauthorized possession of prohibited devices contrary to subsection 92(2) of the Criminal Code , and for possession of explosives for unlawful purpose contrary to subsection 82(1) of the Criminal Code , which are respectively punishable by imprisonment for a term not exceeding five years, ten years and five years, or to less punishment. The other offence you were charged with was laid in accordance with

section 115 of the National Defence Act for receiving property obtained by the commission of a service offence, knowing the property to have been so obtained, which is punishable by imprisonment for a term not exceeding seven years or to less punishment. (

b) With respect to the subjective seriousness of the offences, the court considers five elements as aggravating factors: (

i) The breach of trust. You heard, as I did, how your peers and supervisors felt about your actions. You collected a number of items that belonged to the Canadian Armed Forces and because of the nature of them, and also the quantity, it became obvious that the trust invested in you, the loyalty and integrity you seemed to demonstrate, was, in fact, some kind of fake on this issue. As you know, reliability is a key issue among soldiers to perform a mission and you failed to do so. (ii) The nature and quantity of items found.

You ended up with specialized equipment, magazines in large quantity and explosive substances that should have never ended up in your basement and garage. Some of them require knowledge and training to be operated; the magazines could enhance the ability to fire ammunition and explosive substances require proper storage because of the degree of danger attached to such items.

Basically, you were equipped to easily conduct a small operation at any moment, despite such intent to do so never having been demonstrated. (iii) You testified that those items were collected over a long period of time, which disclosed the fact that you clearly planned to have them at one point in your life. You deliberately added, slowly, but surely, items that you knew you could not possess. (iv) You showed recklessness in the way you approached all of this. You did not care about the storage, safety or the impact on those who would live in your house.

As you said, you thought only of yourself and did not care about the safety and the potential impact on the lives of others. (

v) Finally, your rank and your experience as an operator with CSOR and your deep knowledge about the manipulation of weapons and ammunition should have warned you about the fact that doing such a thing was deeply wrong. However, it appears that it did not change anything from your perspective.

[33] I have also considered the following mitigating factors: (

a) There is your guilty plea. You clearly stated your sincere regrets for what you did and the fact that you understood that whatyou did was wrong. It means, for the court, that you accepted full responsibility for what you did; (

b) There is no annotation on your conduct sheet. In fact, there is no conduct sheet whatsoever so there is no annotationregarding any disciplinary incidents or disciplinary matters or indication of any criminal record you may have; (

c) Clearly, there is no link to a criminal or terrorist organization, the commission of any other crime or the planning of suchthing. Basically, you collected those items for yourself as a matter of interest and identity. Their discovery occurred in a context whereyou tried to make some money for your own benefit. No violence can be associated with those items; (

d) It appears that there were no consequences, other than the deprivation of those items. There was no evidence that it hadsome impact on the operation of the unit or even if those items had to be replaced; (

e) Your outstanding performance as a soldier. Clearly, you deserve respect for what you did. Your ability to continue to careabout other soldiers by sharing your experiences with them in the actual circumstances must be recognized. Your personal skills makeyou fit for this type of job and you have used it well so far; (

f) You are young enough to continue to be a valid asset to Canadian society in general. You still have many years to come inorder to contribute to your community in many ways; (

g) Your mental health issue. It took a long time before you accepted to help yourself on this issue. Clearly, you came from farby accepting to undergo an assessment and now that your mental condition has been established, you have to do the next hard step: takecare of yourself and get treatment. You have to learn how to forgive yourself for past events and find mental strategies that will help youto appreciate life and who you are; (

h) Clearly, over the last four years you have managed to respect the conditions on the restriction of weapons; and (

i) Finally, you will receive a criminal record and this aspect shall not be underestimated. [34] Concerning the fact for this court to impose a sentence of incarceration to Corporal Hoekstra, it has been well established inthe decision by the Supreme Court of Canada in Gladue, (SCC), [1999] 1 SCR 688, at paragraphs 38 and 40, thatincarceration should be used as a sanction of last resort.

The Supreme Court of Canada specified that incarceration under the form ofimprisonment is adequate only when any other sanction or combination of sanctions is not appropriate for the offence and the offender. [35] This court is of the opinion that those principles are relevant in a military justice context, taking into account the maindifferences between the regimes for punishments imposed by a civilian tribunal sitting in criminal matters and the one set up in theNational Defence Act for a service tribunal.

This approach was confirmed by the Court Martial Appeal Court in Baptista, 2006 CMAC 1,at paragraphs 5 and 6, where the court also said that incarceration should be imposed as a last resort. [36] Here, in this case, considering the nature of the offences, including the one related to firearms, devices and explosivesubstances, which are criminal offences per se, the circumstances in which they were committed, the applicable sentencing principles,the aggravating and the mitigating factors mentioned above, I would agree with counsel that there is no other sanction or combinations ofsanctions other than incarceration that would appear as an appropriate punishment in this case. [37] There is no better control system than the one related to the integrity and reliability of members of the Canadian Armed Forcesto properly manage the material necessary for their operations, including the one for weapons and ammunition.

When this system failed,it placed in danger not only the accomplishment of the mission, but also people if such items ended up in improper hands. Considering

this principle, the nature and quantity of items involved in the current charges before the court, combined with the two other criminal offences for which the offender pleaded guilty, incarceration is the minimal measure that would reflect the objectives of general deterrence and denunciation, in this matter. [ 38 ] Now, what would be the appropriate type of incarceration in the circumstances of this case?

The military justice system has a disciplinary tool such as detention, which seeks to rehabilitate service detainees and re-instil in them the habit of obedience in a military framework organized around the values and skills unique to members of the Canadian Armed Forces.

When the act, as charged, goes beyond the disciplinary framework and constitutes a strictly criminal activity, it is necessary to examine the offence, not only in light of the particular values and skills of members of the Canadian Armed Forces, but also from the perspective of the exercise of concurrent criminal jurisdiction. [ 39 ] I gave serious thought to defence counsel’s suggestion to consider detention in this matter.

However, considering the antecedents of Corporal Hoekstra from a working perspective, it is obvious that there is no need to re-instil in him those values and skills unique to members of the Canadian Armed Forces. I would say that emphasis must be given to the fact that he committed criminal offences and must be treated accordingly, as any other citizen in this country.

In addition, as I already mentioned, the nature and quantity of items involved also must be considered as a factor that must be combined with those other offences. [ 40 ] Then, I conclude that incarceration in the form of imprisonment is the only appropriate sanction in the circumstances of this case and there is no other sanction or combination of sanctions that is appropriate for the offences and the offender.

Therefore, the court considers that a sentence of imprisonment is necessary to protect the public and maintain discipline. [ 41 ] The question now is what the duration of such a sentence of imprisonment should be in order to protect the public and maintain discipline.

The prosecutor suggested 18 months, while defence counsel recommended nothing beyond 90 days. [ 42 ] I would agree with defence counsel that the picture revealed by the mitigating factors, especially about the context in which those offences occurred, the guilty plea, the fact I am dealing with a first-time offender, the personal qualities of the offender and his mental health problems, constitute elements that would lead the court to conclude that a long period of incarceration is not necessary.

In fact, it would be counterproductive to the rehabilitation of the offender and totally irrelevant in the circumstances of this case to consider a long period of imprisonment as suggested by the prosecution.

Here, the court is not dealing with somebody who assaulted somebody else or was involved in the commission of any other serious crime that led to the discovery of all those items. [ 43 ] Then, I conclude that a period of 60 days of imprisonment would be a fit and just sentence in the circumstances of this case. [ 44 ] I do not see, in the circumstances of this case, the necessity to combine this punishment with any other kind of punishment as suggested by defence counsel.

The objectives of general deterrence and denunciation would be fully met by the imposition of the sole punishment of imprisonment for a short period of time. [ 45 ] The defence counsel suggested to the court that it suspend the sentence of imprisonment by means of its powers under

section 215 of the National Defence Act because it is warranted on account of the exceptional circumstances of the offender allegedly demonstrated in this case. [ 46 ]

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. [ 47 ] This

section is in Division 8 of the Code of Service Discipline in the National Defence Act , which contains the provisions applicable to imprisonment and detention. The suspension of a punishment of imprisonment is a discretionary and 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 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.

[ 48 ] The National Defence Act does not contain any particular criteria for the application of

section 215. To this day, the court martial’s

interpretation of its application is quite clear and has been established by various military judges in other cases. There are two requirements to be proven: (

a) The offender must demonstrate, on the balance of probabilities, that his or her particular circumstances or the operational requirements of the Canadian Armed Forces justify the necessity of suspending the punishment of imprisonment or detention; and (

b) If the offender has met this burden, the court must consider whether a suspension of the punishment of imprisonment or detention would undermine the public trust in the military justice system, in the circumstances of the offences and the offender including, but not limited to, the particular circumstances justifying a suspension. [ 49 ] It was demonstrated that Corporal Hoekstra meets diagnostic criteria for Post-Traumatic Stress Disorder and Major Depressive Disorder, Single Episode, Severe. He also copes with the problem of alcohol abuse, to a certain degree.

However, there is no evidence that such conditions would constitute special circumstances that would justify the necessity of suspending the carrying out of the punishment of imprisonment. [ 50 ] Corporal Hoekstra will have access to the necessary support for his conditions, which do not prevent him from being incarcerated.

There is no indication that this period of incarceration, being relatively short, would adversely impact on him and on his mental health condition. [ 51 ] Then, it is my opinion that the offender has not demonstrated, on a balance of probabilities, that the existence of his particular circumstances would justify the necessity of suspending the sentence of imprisonment by the court. [ 52 ] I have considered whether this is an appropriate case for a weapons prohibition order as stipulated under

section 147.1 of the National Defence Act .

In my opinion, such an order is not desirable or necessary for the safety of the offender or of any other person in the circumstances of this case [ 53 ] Considering the absence of any form of violence or the existence of other serious crimes when the offences were committed and that the offender is a first-time offender who does not possess any more firearms and that when he did possess firearms, they were used exclusively for training or hunting, and that he is very well alive to the manipulation of such firearms and that he respected, in full, the restriction on firearms that he had as a condition for the last four years, I do not see the necessity to issue such an order. [ 54 ] I do not consider having any authority to oblige the offender to comply with the requirement provided at

section 196.27 of the National Defence Act as requested by the prosecution. [ 55 ] In addition, I will order restitution of the different items seized, as indicated in the two orders attached to the present decision. FOR THESE REASONS, THE COURT: [ 56 ] FINDS Corporal Hoekstra guilty of the first charge, with the concurrence of the prosecution, on a less serious and included offence of possession of marihuana contrary to subsection 4(1) of the Controlled Drugs and Substances Act , and guilty of the third, fourth and twelfth charges. [ 57 ] ORDERS a stay of proceedings on the second and fifth charge. [ 58 ] SENTENCES Corporal Hoekstra to imprisonment for a period of 60 days.

Counsel: The Director of Military Prosecutions as represented by Major A.-C. Samson and Captain L. Langlois Major D. Hodson, Defence Counsel Services, Counsel for Corporal Hoekstra