R v Wilcox, 2011 CM 3012

COURT MARTIAL Citation: R v Wilcox , 2011 CM 3012 Date: 20111118 Docket: 201061 Standing Court Martial Halifax Courtroom Halifax, Nova Scotia, Canada Between: Her Majesty the Queen - and - Corporal Wilcox M.A, Offender Before: Lieutenant-Colonel L.-V. d'Auteuil, M.J. REASONS FOR SENTENCE (Orally) [ 1 ] The military justice system constitutes the ultimate means to impart discipline in the Canadian Forces, which is a fundamental element of the military activity. The purpose of this system is to prevent misconduct, or, in a more positive way, see the promotion of good conduct.

It is through discipline that an armed force ensures that its members will accomplish in a trusting, reliable manner, successful missions. It also ensures that public order is maintained in that those who are subject to the Code of Service Discipline are punished in the same way as any other person living in Canada. [ 2 ] It has long been recognized that the purpose of a separate system of military justice or tribunal is to allow the Armed Forces to deal with matters that pertain to the respect of the Code of Service Discipline and the maintenance of efficiency and the morale among the Canadian Forces.

That being said, the punishment imposed by any tribunal, military or civilian, should constitute the minimum necessary intervention that is adequate in the particular circumstances. [ 3 ] Corporal Wilcox has been found guilty by this court of a service offence under

section 130 of the National Defence Act for criminal negligence causing death by using a firearm contrary to subsection 220 (

a) of the Criminal Code and for a service offence of

negligently performing a military duty contrary to

section 124 of the National Defence Act. [ 4 ] Here, in this case, the prosecutor suggested to the court to sentence Corporal Wilcox to six years' imprisonment, dismissal from the Canadian Forces and also to issue an order pursuant to

section 147.1 of the National Defence Act, prohibiting him for a lifetime, from possessing prohibited firearms, restricted firearms, prohibited weapons, prohibited devices and ammunition and also for a period of ten years to possess any other firearm than those I have just enumerated, and also crossbow, ammunition and restricted weapons and explosive substances.

Also, the prosecution asked this court to make an order to take from the offender a DNA sample pursuant to subsection 196.14(3) of the National Defence Act . [ 5 ] On the other hand, defence counsel for the offender suggested a sentence of one year of imprisonment less the days, there's 73 days, already served as pre-trial custody and custody in accordance with the condemnation coming from the first trial. They suggested that maybe the court can double the time spent in jail, but at least it's one year minus some time spent in jail. [ 6 ] Imposing a sentence is the most difficult task for a judge.

As the Supreme Court of Canada recognized in R v Généreux , [1992] SCR 259, in order “to maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently”. It emphasized that, in the particular context of military justice, “Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct”. [ 7 ] However, the law does not allow a military court to impose a sentence that would be beyond what is required in the circumstances of a 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. [ 8 ] The fundamental purpose of sentencing in a court martial is to ensure respect for the law and maintenance of discipline by imposing sanctions that have one or more of the following objectives: (

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 offences; (

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

e) to rehabilitate and reform offenders. [ 9 ] When imposing sentences, a military court must also take into consideration the following principles: (

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 and the Supreme Court of Canada decisions; and, (

e) lastly, all sentences should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [ 10 ] I came to the conclusion that in the circumstances of this case, sentencing should place the focus on the objectives of denunciation and general deterrence. [ 11 ] Concerning retribution, my understanding of this is that to reflect moral blameworthiness of the offence or offences, in some circumstances retribution can be considered.

However, as I expressed to the prosecutor, some of the moral blameworthiness goes, from the court's perspective, to the Canadian Forces and the lack of leadership in the circumstances of this case. [ 12 ] By acting as they did, leaders,

section commanders, platoon commanders, company commanders, those responsible for those who deployed to Afghanistan at that time, by acting as they did, created an atmosphere that let soldiers think that if they forgot to unload their weapon it was not a big deal.

It was not a big concern. [ 13 ] The pre-deployment incidents brought before this court, which includes: the fact that Master Corporal Crosby pointed his 9- millimetre weapon, empty fortunately, to the head of Sergeant Joyce; pictures taken with the weapons; the attitude; the fact that it was put before the court that quick draw was part of the games some soldiers played; and also the incidents during deployment, the incident at the range with 1 Platoon 3

Section involving Master Corporal Crosby and Sergeant Joyce; but also what has been described by authorities there, that they had to struggle daily with soldiers carrying loaded weapons on camp despite the directive, and the only thing they decided to do was to warn these people that it was not acceptable and just to remove their magazine from their weapon. [ 14 ] No discipline was imposed other than warning soldiers, and all combined, brought an atmosphere or some conditions where a human being forgot to unload his weapon, pointed and fired at somebody, and killed somebody.

He's responsible, but the Canadian Forces must be blamed for not having the proper leadership in the circumstances. So I'm not ready to consider retribution as a principle to determine sentence here in these circumstances. [ 15 ] Here the court is dealing with an offence of criminal negligence causing death, which is a criminal offence per se and also what we call, usually, a pure military offence, which is negligently performing a military duty contrary to

section 124 of the National Defence Act . [ 16 ] Circumstances, I understand, then, that led to the commission of these offences are mainly the fact that Corporal Wilcox, while leaving Entry Control Point 3, unloaded his weapons, but after having his 9-millimetre Browning magazine in his hand, decided to put it back in his pistol instead of doing anything else with it.

On his way back to the tent in the truck he could have removed his magazine, unload his weapon, which he didn't. [ 17 ] Once in the tent, while carrying some equipment, and while Corporal Megeney was there, he saw a weapon pointed at him, probably a pistol, but coming from Corporal Megeney, his reaction was to somehow to play quick draw. I don't understand that it was official, but it was something that they did before. So he drew his pistol, pointed it at Corporal Megeney, pulled the trigger and fired at him.

Right away he was in shock; I think it's loud and clear, because it was unexpected by him and from his colleague, from his brother in arms, to have his pistol fire like this. Eventually, it ended that Corporal Megeney died from this incident. [ 18 ] So these are the circumstances, the main circumstances I rely on. That's my understanding of the incident. In arriving at what the court considers a fair and appropriate sentence, the court has considered the following mitigating and aggravating factors: (

a) First, the court considers as aggravating the objective seriousness of the offences. The offence you were charged with was laid in accordance with

section 130 of the National Defence Act referring to subsection 220 (

a) of the Criminal Code , an offence which is punishable by imprisonment for life and to a minimum punishment of imprisonment for a term of four years. Also, you were charged in accordance with

section 124 of the National Defence Act and the maximum punishment for this offence is dismissal with disgrace from Her Majesty's service or you may be condemned to less punishment;

(

b) The court also considered the subjective seriousness of the offences and for the court it covers three aspects. First, as I expressed in my decision on the finding, you are a well trained and experienced Corporal. At the time of the incident you had familiarity with weapons and I would say a good knowledge with weapons. There are some that you used more and some that you used less, but at least you knew how to operate these weapons and especially the 9-millimetre Browning pistol and you should have known better when you used that weapon; (

c) Another aggravating factor as a matter of context of the negligence is the fact that you deliberately put back the magazine in the pistol, that you pointed your weapon and pulled the trigger despite, first, the directive, and the training you received while you knew the consequences. It was dangerous, it was something that you shouldn't do, but you did it; (

d) Also, as an aggravating factor I have to consider the impact on the victims. Your life has changed, but many other lives have changed too. There is some uncertainty for yours, but there are a lot of uncertainties for others and the court has to consider that. [ 19 ] There are also mitigating factors that I considered: (

a) First, your age and your career potential. Your work performance and your school performance clearly establish that you have a lot of potential in this society, in the Canadian society and that you're still a valid asset for our Canadian society; (

b) Another mitigating factor is the fact that you had to face this court martial, a lengthy court martial, not once, but twice; (

c) I have to consider as a mitigating factor the pre-trial custody for three days while you were in Afghanistan and also the custody for seventy days coming from the sentencing decision of Judge Lamont for the first trial; (

d) Also, as stated by Lieutenant-Colonel Sweet, I have to consider as a mitigating factor, to a certain extent, the administrative unfair treatment by the Canadian Forces. And I refer more specifically to the fact that further to the CMAC decision that, basically, ordered a new trial, it made, legally speaking, a nullity of all decisions made during the first trial, putting you back as you were before the first trial started.

Actions of the CF would have been, logically, to keep you in the Forces or re-enrol you and give you back your status as a Corporal in your unit and by acting so, what they did, they did nothing; made it appear like they made their mind up about you while you were innocent. So I have some difficulty with that and I think it's a mitigating factor; (

e) Now, about the conduct of the prosecution authorities, it is something totally different for me because you can have or adopt a legal position to go through a trial because you think from a legal perspective you have a valid position and at the very end you may change your mind because some other lawyers or some other people will get involved in the matter and realize, or take the position that there is no need to carry on with some things. So from the prosecution's behaviour, I don't take any position for considering this as a mitigating factor; (

f) I have to tell you, for sure, that from the documents submitted to me during the sentencing phase, you have had, and I understand you still have, the support of your unit despite what happened. Serious offences were committed, but despite that, they are ready to have you in their unit. It's a huge commitment from your unit and the people of your unit about what you are.

They, basically, tell the court by acting like this that you're not constituting a danger, you're not in danger, which brings me to the fact that the incident was, basically, out of character, was very unique, when I look at all you did and what you are. And in that sense, I think it explains well why your unit supported you up to today. [ 20 ] I have to mention the fact that this court will impose only one sentence on you despite the fact that you were convicted of more than one offence and it's just in line with

section 148 of the National Defence Act , which is very specific: Only one sentence shall be passed on an offender at a trial under the Code of Service Discipline and, where the offender is convicted of more than one offence, the sentence is good if any one of the offences would have justified it. So just for you to understand that if you would be before a superior court of criminal jurisdiction you would get a sentence for each offence. Before a court martial, it's one sentence despite the number of offences.

[ 21 ] Having said that, it was submitted to me, an

interpretation of subsection 130(2) of the National Defence Act and I will just read it clearly: Subject to subsection (3), where a service tribunal convicts a person under subsection (1), the service tribunal shall, (

a) if the conviction was in respect of an offence (

i) committed in Canada, under

part VII, the Criminal Code or any other Act of Parliament and for which a minimum punishment is prescribed, or (ii) committed outside Canada under

section 235 of the Criminal Code , impose a punishment in accordance with the enactment prescribing the minimum punishment for the offence; or which is of interest: (

b) in any other case, (

i) impose the punishment prescribed for the offence by PartVII, the Criminal Code or that other Act, or (ii) impose dismissal with disgrace from Her Majesty's service or less punishment. [ 22 ] Basically, it was submitted to me by the prosecution that the court has no choice to make it at subsection (

b) between imposing a minimum punishment because there's subsection 220 (

a) of the Criminal Code , impose a minimum punishment of four years, but the prosecution took the position that the court doesn't have to choose between imposing the minimum punishment or impose dismissal with disgrace because, basically, this case deserves a higher punishment, six years. [ 23 ] On the other hand, my understanding of the position of the defence counsel in this case is, the court is allowed to make this choice. The court approached this and I understand that in the previous trial Judge Lamont made no decision concerning this matter.

In the context, I think that there is no evidence supporting any argument to act differently than a superior court with criminal jurisdiction. If I understand clearly, I accept the explanation for the existence of such provisions. The pre-conditions or conditions justifying the fact that the court may make a choice doesn't exist since 1998, since the National Defence Act was amended and changed, mainly, where there's no other punishment attached to the fact, that you go to imprisonment. [ 24 ] So the approach I am taking is that a Canadian soldier in the Canadian Forces is a Canadian citizen.

He cannot be judged differently than any other Canadian citizen; deserves no more, no less, especially when the court is applying Criminal Code provisions. So by saying this, I am making a choice and in one way because I am of the view that the court must impose the punishment prescribed for the offence in the Criminal Code as it is, so impose the minimum punishment.

It can go higher than that, but the court is taking the position that it cannot go lower than four years. [ 25 ] Basically, there's no reason to deal differently with this provision because we are in a military context and because you're before a military trial. Also I rely on, in some way, on the decision of R v Morrisey , 2000 SCC 39 , and R v Ferguson , 2008 SCC 6 , from the Supreme Court of Canada. Inspiring me from what they said, I don't see any reason to do it differently than applying the minimum punishment provision in this case.

So the question for the court, having said that, is what would be the appropriate period of incarceration? Is, as suggested by the prosecution, six years appropriate in the circumstances, or something different, or the minimum punishment?

[ 26 ] I am of the opinion that the minimum punishment must be imposed in this case, the four years, and nothing more and, basically, because when the court considers aggravating and mitigating factors in this case, the court is of the opinion that four years is sufficient to deter anybody else from misusing a weapon in a military context in a theatre of operations. [ 27 ] Also, as I mentioned, mitigating circumstances: your age, your desire and the fact that you proved to this court through documentation that you're clearly trying to turn the page and get on with your life, are mitigating factors that the court considered.

And also considering that you are blamed by my decision, but you have to share this blame, morally speaking, with Canadian Forces authorities and as a mitigating factor I consider that four years is enough. [ 28 ] Now, pre-trial custody must be considered. Those three days must be doubled. I don't see any reason for the seventy days of custody last time to be doubled, so I think a total of seventy-six days must be subtracted from the four years, which ends with a total of three years and two hundred and eighty-nine days. [ 29 ] Now, what about suspension?

I just want to deal and finish with the incarceration topic here. What about suspension? I had to extensively review this issue of suspension in the decision of R v Paradis, 2010 CM 3025 , where both parties jointly suggested, in that case, to the court, to suspend the sentence of forty-five days of imprisonment. First, I would like to read

section 215 of the National Defence Act . It 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 . [ 30 ] I would say that my analysis in Paradis was in the context where, as it is here, the offender was released from the Canadian Forces.

Section 215 of the National Defence Act is in Division 8 of the Code of Service Discipline, 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. It should be noted that since subsection 220 (

a) of the Criminal Code is an offence for which there is a minimum punishment of imprisonment, the use of those two last measures by a court is expressly excluded by the provision under the Criminal Code . [ 31 ] The National Defence Act does not contain any practical criteria for the application of

section 215. To this day, since my decision in Paradis , the court martial's

interpretation of its application is quite clear and has been established by various military judges in other cases such as R v Constantin, 2004 CM 29 , R v Labrie, 2008 CM 1013 , R v Bryson , 2008 CM 1002 , and R v Tardif , 2008 CM 3010 . [ 32 ] Essentially, if the accused demonstrates on a balance of probabilities; that is, or a particular circumstance or the operational requirements of the Canadian Forces justified the necessity of suspending the sentence of imprisonment or detention, the court will make such order.

However, before doing so, the court must consider, once it has found that such an order is appropriate, whether or not the suspension of that sentence will undermine the public trust in the military justice system as part of the Canadian justice system in general.

If the court finds that it will not, the court will make the order. [ 33 ] It has been submitted by defence counsel that in the context where Corporal Wilcox has been released from the Canadian Forces, but the court has the choice in this context, without being mandatory, it's something that because of the court's circumstances calls for suspending the sentence. This argument parallels a bit what has been said in R v St-Onge , 2010 CMAC 7 , or what people think about St-Onge or his application.

However, I would say — and St Onge , 2011 SCC 16 , has been overturned by the Supreme Court of Canada — the fact that you have been released from the Canadian Forces must be considered by the court, but does not call, necessarily, for suspending the sentence. [ 34 ] I would like to remind people that it is not a matter of whether or not the court must impose a punishment of imprisonment since that punishment is imposed automatically by operation of the law, as a minimum punishment, rather, it's a matter of whether or not the sentence must be executed, considering among other things the fact that the offender was released.

Also, it was established that he's going to school so, basically, that he is getting on with his life. I have the duty to examine this question from a perspective of imposing a

sentence for a criminal offence rather than a strictly disciplinary offence.

I think it is important to keep on our minds. [ 35 ] I'm still of the opinion, despite the additional evidence put by the offender and submissions made by defence counsel, that the offender has failed to establish on a balance of probabilities that there are exceptional circumstances particular to him that would justify suspending the sentence of three years and two hundred and eighty-nine days of imprisonment imposed by this court. [ 36 ] Despite that it will affect your life, I also understand that it will not jeopardize your chances to get back to school and complete what you are doing now.

Also, I don't have any other evidence that it could compromise anything else in your life. It will delay things, that's my understanding, but it won't make anything impossible for you, especially considering your age. [ 37 ] I am of the opinion that the suspension of the sentence of imprisonment imposed by this court would undermine the public confidence in the military justice as a complement of the Canadian justice system in general.

It would not adequately reflect the societal concern that such conduct must not be tolerated when such offences are committed and it would go against the objective of denunciation and punishment arising from the commission of such offences. [ 38 ] Now, concerning the prohibition order under

section 147.1 of the National Defence Act , there was an opportunity for counsel to comment on this specific item. As it is for the imposition of this punishment, I do not see why, despite the fact that I have to exercise discretionary power in such circumstances, especially in the Criminal Code provision at

section 109 , if in the exact same circumstances the prohibition order would be mandatory, basically, and I don't have any reason to do it differently than it would be if we were before a superior court of criminal jurisdiction. I understand that

section 147.1 of the National Defence Act gives me some discretion, but in this case I don't see anything different that would make me conclude that I should not impose such an order. [ 39 ] Concerning the order under

section 196.14 of the National Defence Act, which is not mandatory, but requested by the prosecution, I don't see any reason why I would impose such a thing. For sure the nature of the offence is serious, but the impact on the person's privacy is huge. Other than the incident itself, I have no indication that Corporal Wilcox used violence or such other things. In fact, the evidence is that after the incident he was given a weapon, used a weapon and there was no problem. It's a mitigating factor in the circumstances, part of the mitigating factors.

It would cause, from my perspective, unnecessary hardship on his privacy, on his life, because it would mean that he would have to report at different moments during a period of time if I impose such an order and I don't want this. There's no need for doing that. I don't fear for the security of Corporal Wilcox or for anybody else especially in the context where there is a prohibition order concerning the possession of weapons. So I don't see any reason why I would impose such a thing. Corporal Wilcox, please stand up.

FOR THESE REASONS, THE COURT: [ 40 ] SENTENCES you to three years and two hundred and eighty-nine days of imprisonment. [ 41 ] DIRECTS , in exercising my authority under

section 220 of the National Defence Act , that you be brought to the Springhill Institution, 330 McGee Street, Springhill, Nova Scotia. [ 42 ] PROHIBITS you, pursuant to

section 147.1 of the National Defence Act , from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition, including any of these things required in the course of the offender's duties or employment as a member of the Canadian Forces, for life. [ 43 ] PROHIBITS you from possessing any firearm, other than a prohibited firearm, or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance that would end not earlier than ten years after your release from imprisonment. In accordance with

section 147.3 of the National Defence Act , but subject to any other term of this order, every item prohibited by this order and in the possession of the offender, if so, on the commencement of the order is forfeited to Her Majesty to be disposed of or otherwise dealt with as the Minister directs. [ 44 ] ORDERS that you are required, within 30 days, to deliver to an officer or non-commissioned member appointed under the regulation for the purposes of

section 156 of the National Defence Act, or to the person's commanding officer, all things the possession of which is prohibited by this order together with every authorization, license and registration certificate relating thereto and that you held on the commencement of this order. Pursuant to

section 147.4 of the National Defence Act , every authorization, license and

registration certificate relating to any thing, the possession of which is prohibited by this order and issued to you, on the commencement of the order, be revoked or amended, as the case may be, to the extent of the prohibitions in the order. Counsel: Commander R. Fetterly and Major A. Tamburro, Canadian Military Prosecution Services Counsel for Her Majesty the Queen Mr. D. Bright, BoyneClark, 99 Wyse Rd, Suite 600, Halifax, Nova Scotia, B3A 4S5, and Lieutenant-Colonel T. Sweet, Directorate of Defence Counsel Services Counsel for ex-Corporal M.A. Wilcox