R v Racine, 2014 CM 1011

COURT MARTIAL Citation: R v Racine, 2014 CM 1011 Date: 20140520 Docket: 201417 Standing Court Martial Canadian Forces Base Valcartier, Courcelette, Quebec, Canada Between: Her Majesty the Queen - and - Captain J.P.H.E. Racine, Offender Before: Colonel M. Dutil, C.M.J. OFFICIAL ENGLISH TRANSLATION REASONS FOR SENTENCE (Orally) [ 1 ] Captain Racine has been found guilty of conduct to the prejudice of good order and discipline under

section 129 of the National Defence Act for having used cannabis contrary to

article 20.04 of the Queen’s Regulations and Orders (hereafter QR&Os) . [ 2 ] He joined the Canadian Armed Forces as an infantryman in the Regular Forces on 27 April 1994. He received his commission as an infantry officer on 24 April 2000. During his career, which spans 20 years, he was deployed on and participated in a number of missions, including in Bosnia–Herzegovina (1995), Haiti (1997), East Timor (October 1999 to March 2000) and Afghanistan (June 2007 to March 2008). [ 3 ] In October 2013, Captain Racine was taking a military career counsellor course at the Royal Military College Saint-Jean .

Lieutenant (Navy) Goslinga was also there, but as an instructor. At the time of the events in this case, he was the new detachment commander of Canadian Forces Recruitment Centre Detachment Chicoutimi, located in Saguenay.

[ 4 ] Around 2200 hours, on 2 October 2013, Lieutenant (Navy) Goslinga received an email from Captain Racine inviting her to come have a beer with him in his room. Having not seen him for several years, Lieutenant (Navy) Goslinga accepted Captain Racine’s invitation. Shortly after her arrival, Captain Racine told her that he wanted to go for a smoke. Even though she does not smoke cigarettes, Lieutenant (Navy) Goslinga accompanied Captain Racine so that they could continue their conversation. When they arrived at the riverbank, he said to her, [ translation] “You know me. I’m not a cigarette smoker.

I prefer a little joint,” or words to this effect. Captain Racine then lit up a cannabis cigarette and smoked it in the presence of his colleague. He did not offer her any. Lieutenant (Navy) Goslinga then recognized the smell of cannabis, but she said nothing to Captain Racine regarding his drug use.

They then went back inside and continued their conversation without, however, discussing what had just happened. [ 5 ] It was not until on week later, on 9 October 2013, that Lieutenant (Navy) Goslinga sent a written statement to Major Collin, the commanding officer of Canadian Forces Recruitment Centre Québec and Captain Racine’s new commanding officer for a few months already. She informed him that Captain Racine used cannabis in her presence on 2 October 2013. In the evening that same day, she informed her colleague, Captain Racine, that she had notified Major Collin of his cannabis use on 2 October 2013.

Captain Racine then sent several emails to Lieutenant (Navy) Goslinga to ask about the nature of the information that she had given to the commanding officer, to find out who knew about the incident and to express his feelings about the situation.

The next day, on his own initiative, Captain Racine sent Major Collin an email in which he admitted having used cannabis [ translation] “four times in September and October 2013” and asked to be relieved of his duties as detachment commander of Detachment Chicoutimi. [ 6 ] On 16 October 2013, Major Collin mandated Captain Kelly, the administration officer at Canadian Forces Recruitment Centre Québec, to conduct a disciplinary investigation regarding the incident of 2 October 2013. He met with Lieutenant (Navy) Goslinga on 24 October 2013 and with Captain Racine on 28 October 2013 as part of this investigation.

He learned that it was only after a long period of reflection that Lieutenant (Navy) Goslinga finally decided to report Captain Racine because she felt uncomfortable with the idea of reporting Captain Racine and felt as if she was caught between a rock and a hard place. She told him that she was in a clash of loyalty and ethics, in that she was forced to choose between a longstanding friendship and her duty as an officer in the Canadian Forces. [ 7 ] It was at his meeting with Captain Racine that Captain Kelly learned that Captain Racine had used cannabis in the past, on the following occasions: (

a) Between March and October 2008, after his return from Afghanistan. He admitted to him that he stopped using it in October 2008, after seeking and obtaining help from a social worker. (

b) Between April and October 2013, after his return from Bosnia. He admitted having used it four or five times between April and June 2013. (

c) Finally, Captain Racine told him that he used it regularly between June and October 2013. [ 8 ] At the same meeting, Captain Kelly also confirmed that Captain Racine was aware of the Canadian Forces’ policy on drugs, particularly by having signed a document a document to this effect upon his enrolment, as well as in the course of his career, including on 29 September 2004.

Again at this meeting, Captain Kelly learned that after the incident of 2 October 2013, Captain Racine asked for help and was given a psychiatric consultation. [ 9 ] At the sentencing hearing, in addition to the documentary evidence filed by consent of the parties, the Court first heard the testimonies of Major Collin and Captain Racine.

After considering all this evidence, the Court compelled the appearance of Lieutenant (Navy) Plante, Captain Racine’s attending physician, after obtaining the parties’ comments and their acquiescence, because the Court thought that his testimony could help it in passing a sentence that would be just and appropriate in the circumstances. [ 10 ] First, Major Collin described the process for selecting officers who do recruitment, as well as their roles and responsibilities, including the responsibility to inform young candidates about the Canadian Forces Drug Control Program.

Major Collin explained that recruiting officers are mandated to, among other things, attract individuals who could be could candidates and enrol them in the Canadian Forces. They are also responsible for informing recruits about various policies and requirements applicable to Canadian Forces members, including the Canadian Forces Drug Control Program. They must also meet with various social workers in the local community while seeing to the sound management of a recruitment centre’s detachments and managing military and civilian staff.

The officers chosen to command a detachment of a recruitment centre must have the following attributes: dynamism, interpersonal skills, leadership and the ability to carry out duties independently. This is why the individuals selected are given command of a detachment

only at the end of a selection and interview process that is tailored to the requirements of the job. Major Collin testified that he has known Captain Racine for 20 years and that he appreciated his qualities.

He stated that Captain Racine did not mention at his interview for the position of detachment commander for Detachment Chicoutimi, to which he was appointed in April 2013, that he had been diagnosed in 1998 with problems related to post-traumatic stress disorder in 2008 and that he had been having difficulties since a recent trip that had taken him to Bosnia in early 2013 and caused some particularly troubling emotions to resurface. Major Collin remembered that Captain Racine appeared to him to be highly motivated by this new challenge.

Captain Racine did not tell Major Collin that he had mental health problems before the events that are the subject of this court martial. Major Collin ordered counselling and probation from 18 October 2013 to 17 October 2014, based on Captain Kelly’s disciplinary investigation and on the discussions he had with Lieutenant (Navy) Goslinga, as well as with Captain Racine regarding his violation of the drug control program.

Captain Racine agreed to be relieved of his duties at the recruitment centre detachment and was loaned to the Régiment du Saguenay. [ 11 ] Captain Racine testified regarding the circumstances surrounding his cannabis use during October 2013, but also regarding the fact that he had been using cannabis since his return from a trip to Bosnia in early 2013, when he was posted to Kingston from 2010 to spring 2013. Captain Racine testified, and he did not try to evade the questions. He seemed sincere and candid, but very fragile.

There can be no doubt that this man has had and is still having a hard time, even though his current state seems to be improving, by his own admission and according to his doctor. The consultation report provided by a military psychiatrist on 30 October 2013, tells us that Captain Racine was first referred to mental health services in December 2008 to be assessed for post-traumatic stress disorder, and the diagnosis was positive, namely, [ translation] “chronic post-traumatic stress disorder, moderate major depressive episode and possible substance abuse to be eliminated”.

His state was related to, among other things, his deployment to Afghanistan. At that time, Captain Racine reported problems with insomnia and aggression, as well as nightmares about incidents. These incidents concern the deaths of three comrades from the detonation of an improvised explosive device and his having been left outside a vehicle and forgotten during that mission. At the time, Captain Racine agreed to take medication to help improve his condition, but he stopped a week later because he was experiencing what he considered to be unacceptable side effects.

He received psychiatric follow-up several times, but mainly psychotherapy for a significant period. Certain incidents that had occurred in Bosnia in 1995 then began to resurface. At his meeting with the military psychiatrist in October 2013, the question of traumatic events experienced by Captain Racine when he was in Haiti in 1997 and in East Timor in 1999 also came up. His medical category returned to normal in March 2010, and he was considered to be healed. He was reinstated in his duties at that time. Captain Racine himself thought that everything was all right again.

He testified that he had received all the support he needed from his superiors during that period, but he thought that his chain of command would not be able to give him the same support should his condition ever deteriorate in the future, thus compromising his ability to remain in the Canadian Forces, after the discussion he had had during that period with people in his organization. [ 12 ] As is described in the consultation report from October 2013, Captain Racine testified that his recent health problems were made worse by the trip he made to Bosnia in early 2013.

His problems sleeping returned, as did his nightmares. His family situation became difficult, and he had feelings of aggression that manifested as verbal violence towards the members of his family. He no longer recognizes himself, and he chooses to avoid his problems by pushing himself further rather than asking for help again. That is why he started working more and more and was offered the chance to command the recruitment centre detachment in the Saguenay.

As I described earlier, Captain Racine did not seek professional help, but instead chose to self-medicate by using cannabis obtained illegally to sleep and to reduce his anxiety, knowing full well that this contravened and made a mockery of the Canadian Forces Drug Control Program. He testified very candidly about the benefits that he says he felt when he used cannabis to reduce his anxiety and to get to sleep. Captain Racine is still not open to taking conventional medication to treat his symptoms. This was corroborated by his attending physician.

He explained his reservations about pharmacological medications based on his own observations of friends or personal acquaintances who have had similar experiences. Since January 2014, he has been taking

part in psychotherapy in the Saguenay, and his condition is improving. However, it appears that he continued to use cannabis occasionally until just recently, when his situation became difficult. Captain Racine also allowed this confidential information recently shared with his attending physician to be disclosed to Lieutenant (Navy) Plante to help the Court better understand Captain Racine’s current condition.

Captain Racine implicitly acknowledged that his illegal use of cannabis not only breaches his obligations to comply with the drug control program, but is also inconsistent with the role and responsibilities of an officer of his rank and experience. This is even more obvious when such an officer is given command of a detachment of a Canadian Forces recruitment centre. Captain Racine is not more open today to agreeing to take medication to treat his symptoms.

His medical file is currently under review, and his doctor told us that he thinks that Captain Racine could be released from the Canadian Forces for medical reasons within about one year. Until such time, he is continuing his therapy, and he no longer has military duties or wears the uniform. Captain Racine is currently assigned to carpentry-related duties at the base in Bagotville. He recently chose to obtain civilian medical approval for authorization to use cannabis for therapeutic purposes.

His application was granted on May 5, 2014, after a consultation by videoconference with a doctor from Greenleaf Clinic in British Columbia. Captain Racine’s activities in this regard are known to Canadian Forces medical authorities.

However, Lieutenant (Navy) Plante explained to the Court that his discussions with his chain of command regarding the directive on the use of cannabis for medical purposes, which was reproduced as Exhibit 10, indicated to him that he would not be allowed to use cannabis before his release; otherwise, he would be in violation of the conditions of his counselling and probation, which is in force until October 2014.

According to the testimony of Lieutenant (Navy) Plante, it seems that Canadian Forces medical authorities cannot refer a patient unless he or she has a serious and debilitating illness, such as an incurable cancer, but that Captain Racine’s situation is apparently not covered by this directive. So even though Captain Racine has legal authorization to use cannabis for therapeutic purposes, he would expose himself to other administrative or disciplinary action if he decided to use it. A reading of the directive and its

interpretation raise several legal questions that are not relevant to the disposition of this case, but it is worth a look, particularly since subparagraph 20.04(

a) of the QR&Os allows an officer or non-commissioned member to use any drug authorized by a qualified medical or dental practitioner for the purposes of medical treatment or dental care. It is not the Court’s role, however, to conduct such an examination. [ 13 ] In imposing an appropriate sentence on an accused for the wrongful acts that he or she has committed in relation to the offences of which he or she is guilty, certain objectives must be aimed for in light of the applicable principles, which vary slightly from one case

to the next. The fundamental purpose of sentencing in a court martial is to maintain military discipline and build respect for the law by imposing fair sanctions having one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders to return to their environment in the Canadian Forces or civilian life; and (

f) to promote a sense of responsibility in military members who are offenders. [ 14 ] The sentence must also take into consideration the following principles. It must be proportionate to the gravity of the offence, the previous character of the offender and his or her degree of responsibility. The sentence should also take into consideration the principle of parity in sentencing, that is, a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

Before considering depriving an offender of liberty, the Court has a duty to consider whether less restrictive sanctions may be appropriate in the circumstances. Last, all sentences should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender and to account for any indirect consequence of the verdict or the sentence on the offender.

The sentence will therefore be the result of a balancing exercise that yields the minimum sentence that the Court considers to be adequate to meet that which will consist of the sanction or a combination of sanctions that the Court Martial considers to be the minimum while still contributing to the maintenance of military discipline and respect for the law. [ 15 ] The prosecution submits that a sentence composed of a severe reprimand and a fine of $3,500 is the minimum measure to ensure the protection of the public and the maintenance of discipline in the circumstances.

It refers primarily to the recent decision of Lieutenant-Colonel Perron, Military Judge, in R v Canning , 2012 CM 4018 , dated 2 November 2009, subsequent to a guilty plea for a similar offence. The Court Martial adopted the joint submission by counsel, and the offender was sentenced to a severe reprimand along with a fine of $2,500 payable in monthly instalments of $250. In that case, Petty Officer 1st Class Canning had been arrested at a roadblock in Victoria, British Columbia, by a constable of the Capital Regional District Integrated Road Safety Unit. He was the sole occupant of the vehicle.

The constable had smelled a fresh odour of marijuana coming from the vehicle. He was arrested for possession of a controlled substance and informed of his rights. A vehicle search was then conducted, and a clear bag containing two individually wrapped bags of marijuana and a marijuana cigarette, mixed in with a package of cigarettes, were found. The military police were contacted, and they brought Canning back to Canadian Forces Base Esquimalt. During an interview, Canning told the military police that he had purchase $40 worth of marijuana earlier that day.

Throughout the interview, he co-operated with the investigator. The seized substance weighed 7.5 grams. During this interview with the military police, he stated that he had smoked marijuana for the past five years, but never during the week. He had been a Forces member since 1991 and was 41 years old. At the time of the trial, he was subject to a counselling and probation measure for drug use. According to the evidence filed before the Court Martial, Canning suffered from chronic pain in his neck as a result of radiation treatments in 2006 for pharyngeal cancer.

This pain was aggravated by a cervical disc disease. The offender also had intermittent anxiety disorder. Canning explained that his marijuana use helped to relieve his health problems. The Court noted the reasons given by the offender but concluded that this choice could not excuse the decisions and actions of Petty Officer 1st Class Canning.

The military judge imposed the proposed sanctions, concluding as follows at paragraph [12] of the original English version: . . . [G] eneral deterrence is the main sentencing principle that needs to be applied in the present case, although the rehabilitation of the offender must also be considered . [ 16 ] In the case at hand, the prosecution submits that Captain Racine’s medical condition cannot be used to minimize the serious nature of the offence committed by Captain Racine in the context of the important function that the offender performed during the relevant period, namely, that of detachment commander of a recruitment centre.

Counsel for the prosecution criticizes Captain Racine for not telling his chain of command about his medical problems during the selection process for the position in question, and for not admitting his marijuana use until after his friend Goslinga reported him. With respect for the prosecution’s arguments, the Court does not agree with this reasoning. The evidence before this Court explains why Captain Racine did not so.

In addition to his medical condition during the relevant period, the offender’s explanations regarding the reasons for his choice not to disclose his problems to his chain of command are consistent, albeit highly subjective. He thought that a recurrence of his symptoms related to his post-traumatic stress disorder diagnosed in 2008 could have irreversible consequences on his military career and result in his release from the Canadian Forces. However, this does not excuse his choice to self-medicate with cannabis, contrary to his obligation to comply with the Canadian

Forces Drug Control Program, a policy that he himself had to explain to candidates for enrolment. [ 17 ] The defence submits that the prosecution’s recommendation does not account for the exceptional nature of this case or for the just as exceptional career of Captain Racine over the last 20 years. Without minimizing the significance of the offence, the defence submits that the Court should make a distinction between a case of drug use for recreational purposes and that of Captain Racine, who used cannabis for self-medication.

Although the defence admits that the sentence proposed by the prosecution would normally be acceptable, it submits that because of the offender’s exceptional circumstances related to serious health reasons requiring therapeutic treatment, a simple reprimand would be sufficient.

With respect for the defence’s opinion, the sentence of a reprimand that it proposes would not contribute to respect for the law and to the maintenance of discipline because it does not emphasize all the objectives that the Court considers to be important in this case, namely, general deterrence, denunciation of the conduct, promotion of a sense of responsibility in military members who are offenders and, lastly, rehabilitation.

The weighing exercise required to arrive at a just and fair sentence does not lead to the conclusion that the defence’s proposal is in the interests of military justice. [ 18 ] To arrive at a sentence that the Court considers to be fit and just in this case, I will stress the objective importance of the offence, and I will then list the relevant aggravating factors and mitigating factors. First of all, it is important to recognize that the offence set out in

section 129 of the National Defence Act is objectively serious because it is punishable upon conviction by dismissal with disgrace from Her Majesty’s service. Its subjective seriousness will vary depending on, among other things, the act, conduct or neglect to the prejudice of good order and discipline, but also depending on the intrinsic significance of the act, conduct or neglect within the spectrum of norms established to ensure operational effectiveness and the maintenance of discipline within the Canadian Armed Forces.

Even though it has been amended periodically, the Canadian Forces Drug Control Program has for decades been a key instrument for ensuring operational effectiveness, discipline, the security of property and the safety of persons in the Canadian Armed Forces. It is appropriate to bear in mind the purpose of this essential policy as it appears in

article 20.03 of the QR&Os: 20.03 - PURPOSE The purpose of the Canadian Forces Drug Control Program is the maintenance of: a. the operational readiness of the Canadian Forces; b. the safety of members of the Canadian Forces and the public; c. the health of members of the Canadian Forces and the public; d. the security of defence establishments, materiel and other public or private property; e. the security of information classified in the national interest or otherwise protected by law; f. discipline within the Canadian Forces; g. the reliability of members of the Canadian Forces; and h. cohesion and morale within the Canadian Forces. [ 19 ] These considerations cannot be dissociated from each other and cover both the professional competencies and the standards of conduct expected of members.

This program is also the cornerstone of the Canadian Forces’ commitment to maintaining a drug-free workplace. The implementation of this policy is set out in Defence Administrative Orders and Directives (DAOD) 5019-3, Canadian Forces Drug Control Program , which provides the appropriate tools and information to reduce or eliminate the drug-risk behaviours of Canadian Forces members.

In this context, there can be no doubt that the illicit use of drugs by Canadian Forces members is a serious disciplinary offence. [ 20 ] In addition to the importance of this principle, the Court considered all the other sentencing principles listed earlier, in light of the aggravating and mitigating circumstances related to the commission of the offence or to the offender’s situation. In this case, the Court finds that the following elements are aggravating circumstances: (

a) Captain Racine is a highly experienced member with 20 years of service in the Canadian Armed Forces. He enrolled as an

infantryman in 1994 and was commissioned less than six years later. His career is exemplary, and his professional and personal attributes made him an excellent candidate for the strategically important position of detachment commander for a Canadian Forces recruitment centre. This is a position that requires an outstanding level of integrity. It is inconceivable that, in light of the very nature of the duties assigned to him as detachment commander, he continued to use cannabis under the pretext that this self-medicating was best for him.

Not only did he know the ins and outs of Canadian Forces drug control policy, but his extensive experience gave him a solid understanding of its foundations. His state of physical and psychological distress cannot be used as an excuse for his serious failure to demonstrate the integrity and leadership required of an officer in such circumstances. (

b) Captain Racine used cannabis when he himself was taking

part in his recruiter training, in the presence of a colleague and friend. Even though the statement of circumstances indicates that he used cannabis many times before the incident for which he was charged, these admissions do not constitute similar offences that the Court may take into consideration under

section 194 of the National Defence Act because the offender made no such request. However, the Court considers them to be relevant in assessing the blameworthy state of mind of the offender when he committed the offence, as well as his indifference to the prohibition against using drugs illicitly. That was his choice. [ 21 ] The following mitigating circumstances are worth mentioning: (

a) Captain Racine has bravely and devotedly served his country for more than 20 years. He served on dangerous and difficult missions in Bosnia-Herzegovina, Afghanistan, Haiti and East Timor. His military life made him into a man who now suffers from serious mental health problems and who to this day still needs significant support. It should be noted that the treatment and follow-up for post-traumatic stress disorder represent a monumental challenge for the Canadian Forces’ health services, but they are also a similar challenge for the entire military community and the Canadian Forces’ chain of command.

However, it is clear that Captain Racine has served his country with dignity and that his self-sacrifice has had and continues to have a deleterious effect on his health and on his family relationships. In this sense, Captain Racine’s situation distinguishes this case from that of Petty Officer 1st Class Canning. (

b) Captain Racine is now 45 years old and will most likely be released from the Canadian Armed Forces within the next year for medical reasons related to his post-traumatic stress disorder. Even if he was relieved of his military duties because of the offence he committed, he is not performing any significant duties for an officer of his rank. He continues to receive weekly psychotherapy. His condition is improving, but he is still experiencing symptoms of his illness. (

c) He admitted his guilt at the first opportunity and co-operated with the military authorities as soon as his friend Goslinga reported him. Even though this is an important mitigating circumstance, the fact that the accused chose to continue using cannabis occasionally after being relieved of duty keeps me from seeing any remorse here, even though the admission of guilt is, in itself, a sign that he accepts responsibility for his misconduct. The Court notes that his choice to self-medicate to manage his problems with post-traumatic stress won out over his duty to comply with the drug control program.

His recent application for authorization to legally obtain cannabis for medical purposes at least provides a better framework for any future use. It is not up to this Court to speculate on the appropriateness of such a use, should it occur, or to define the legal parameters for that use. (

d) And finally, Captain Racine is the father of two young children, and his spouse is enrolled in a PhD program at Queen’s University in Kingston, Ontario. She is currently unemployed, and the family resides in Saguenay. [ 22 ] The sentence must express the following objectives: general deterrence, denunciation of the act, promotion of a sense of responsibility in military members who are offenders and, lastly, rehabilitation. Self-medicating for real and serious health problems by ingesting illicit substances is no excuse for violating a clear prohibition as set out in

Chapter 20 of the QR&Os. An outrageously lenient sentence would only encourage such practices, which is not in the interests of individuals or of the Canadian Armed Forces. The use of authorized drugs may be permitted by military authorities, but it will always be properly supervised so as not to undermine operational effectiveness and discipline. FOR THESE REASONS, THE COURT [ 23 ] FINDS the offender guilty of the first count, namely, conduct to the prejudice of good order and discipline under

section 129 of the National Defence Act for having used cannabis contrary to

article 20.04 of the Queen’s Regulations and Orders ; and [ 24 ] SENTENCES the offender, Captain Racine, to a severe reprimand and a fine of $500.

Counsel: Major G. Roy, Canadian Military Prosecution Service Counsel for Her Majesty the Queen Major J.L.P.L. Boutin, Defence Counsel Services Counsel for Captain J.P.H.E. Racine.