R v Vezina, 2013 CM 3015

COURT MARTIAL Citation: R v Vezina , 2013 CM 3015 Date: 20130614 Docket: 201264 Standing Court Martial Canadian Forces Base Borden Borden, Ontario, Canada Between: Her Majesty the Queen - and - Private A.L. Vezina, Offender Before: Lieutenant-Colonel L.-V. d'Auteuil, M.J. REASONS FOR SENTENCE (Orally) [ 1 ] Private Vezina was found guilty by this court martial of two service offences punishable under

section 130 of the National Defence Act for trafficking in cocaine on 20 April and 26 April 2012, contrary to subsection 5(1) of the Controlled Drugs and Substances Act . [ 2 ] As the military judge presiding at this Standing Court Martial it is now my duty to determine the sentence. [ 3 ] 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 the military activity in the Canadian 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.

[4] It has long been recognized that the purpose of a separate system of military justice or tribunal is to allow the armed forces todeal with matters that pertain to the respect of the Code of Service Discipline and the maintenance of efficiency and the morale amongthe Canadian Forces (see R v Généreux (SCC), [1992] 1 SCR 259 at 293). [5] The same court also recognized in the same decision at paragraph 31 that: Service tribunals thus serve the purpose of the ordinary criminal courts, that is, punishing wrongful conduct, in circumstances where theoffences committed by a member of the military or other person subject to the Code of Service Discipline.

That being said, the punishment imposed by any tribunal, military or civilian, should constitute the minimum necessary intervention thatis adequate in the particular circumstances. [6] Here, the prosecutor is suggesting sentencing the offender to imprisonment for a period of twelve months. Private Vezina'sdefence counsel also recommended imprisonment, but for a period of 30 days. He also suggested that the court suspend the sentence,and in addition, sentence you to a minor punishment, which is confinement to barracks for a period of 21 days. [7] Imposing a sentence is one of the most difficult tasks for a judge.

As the Supreme Court of Canada recognized in Généreux,at page 293, in order: To maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively andefficiently. 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 civilianengaged in such conduct. However, the law does not allow a military court to impose a sentence that would be beyond what is required in the circumstances of thecase.

In other words, any sentence imposed by a court must be adapted to the individual offender and constitute the minimum necessaryintervention 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 byimposing 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 a sentence, 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 inthe circumstances.

In short, the court should impose a sentence of imprisonment or detention only as a last resort as it was established bythe 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 tothe offence or the offender. [10] The court is of the opinion that sentencing in this case should focus on the objectives of denunciation and general and specificdeterrence.

It is important to remember that the principle of general deterrence means that the sentence should deter not only theoffender from re-offending, but also deter others in similar situations from engaging in the same prohibited conduct. [11] Here the court is dealing with the service offence of trafficking in cocaine at two different times, which is on 20 April and 26April 2012, contrary to section 5(1) of the Controlled Drugs and Substances Act. [12] The Court Martial Appeal Court articulated clear reasons why the involvement with drugs in a military environment must betreated as a very serious matter.

In 1985, in its decision of R v MacEachern, (1986) (CMAC), 24 CCC (3d) 439, atpage 444, the court said: Because of the particularly important and perilous tasks which the military may at any time, on short notice, be called upon to performand because of the team work required in carrying out those tasks, which frequently involve the employment of highly technical andpotentially dangerous instruments and weapons, there can be no doubt that military authorities are fully justified in attaching very greatimportance to the total elimination of the presence of and the use of any drugs in all military establishments or formations and aboard allnaval vessels or aircraft.

Their concern and interest in seeing that no member of the forces uses or distributes drugs and in ultimatelyeliminating their use may be more pressing than that of civilian authorities. [13] In 2010 the Court Martial Appeal Court was of the same opinion and told us that trafficking in drugs in the military is aserious offence and this court totally agrees with this affirmation. In R v Lee, 2010 CMAC 5, the court said at paragraphs 26 and 27:

(26) It is clear that trafficking in drugs within the military is a serious offence and that convictions usually result in carceralsentences. The main concern in determining the appropriate sentence is to deter others. As the Court stated in Dominie v. The Queen,2002 CMAC 8, "general deterrence requires that the military know that they will be imprisoned if they deal in crack cocaine on militarybases" (para. 5).

(27) The same concern was expressed in a case where the accused was charged with a single offence of trafficking in a smallamount of cocaine (Taylor v. The Queen, 2008 CMAC 1). The Court upheld the Military Judge's sentence of 40 days' imprisonment.

The Military Judge justified the sentence by stating that the "use of drugs and the trafficking of drugs are a direct threat to theoperational efficiency of our forces and a threat to the security of our personnel and equipment" (para. 27). [14] PRETC is a platoon at Canadian Forces Base Borden where candidates who went through their basic training are waiting toget on their trade courses. Petty Officer 2nd Class Clowe, an undercover operator, arrived at Canadian Forces Base Borden on 15 April2012. She got a room at building A-79 on that same day.

Some of the PRETC members were used as mentors for the AboriginalMentor Programme, which is a pre-recruitment programme used for familiarizing Aboriginals interested in a military career with basicrequirement on the basic training program. Some Canadian Forces members of the PRETC were tasked to help out and act as mentors

for Aboriginals on this program. Private Vezina was tasked, as was Petty Officer 2nd Class Clowe, who was for the purpose of the undercover operation, Private Samson, as a mentor on that programme. So both would be in the same platoon and in the same working environment. [ 15 ] On the morning of 20 April 2012, Petty Officer 2nd Class Clowe, received a phone call from Private Vezina. They agreed on a place to meet. An exchange of money took place at lunch time in Private Vezina's car, in front of the mess hall all on Canadian Forces Base Borden. Petty Officer 2nd Class Clowe paid for one gram of cocaine.

She paid in advance $80, which is four times $20, to Private Vezina. [ 16 ] On the evening of that same day, Private Vezina came on the base to deliver the drug. Private Vezina texted to the undercover operator to know where she could meet her. Petty Officer 2nd Class Clowe then set-up the drug exchange. It took place in the parking lot of building T-115 on Canadian Forces Base Borden, which was her working place. Private Vezina was in her car with another female person sitting in the passenger seat. Petty Officer 2nd Class Clowe went on the driver side. The driver's window was half down.

She gave $20 to Private Vezina for gas fees, which was agreed upon prior to the exchange, and Private Vezina gave her a small bag with a white powder in it. Petty Officer 2nd Class Clowe discussed briefly with Private Vezina. She went back to work and Private Vezina left. [ 17 ] On 24 April 2012, Petty Officer 2nd Class Clowe, always acting as an undercover operator, paid $100 to Private Vezina. The amount represented $80 for the cocaine and $20 for the delivery.

The exchange of money took place around two o'clock in the afternoon in the female bathroom of building T-83 on Canadian Forces Base Borden. [ 18 ] It took some time for Private Vezina to find somebody to supply the drug and Petty Officer 2nd Class Clowe communicated with her once in a while to know when she could get the drug. Finally, an exchange took place in front of the female accommodations at building A-79 around 11: 30 p.m. Petty Officer 2nd Class Clowe exited the building and she went on the driver's side of Private Vezina's car. They had a short conversation.

Private Vezina gave her a small bag with a white powder in it. Private Vezina, who was alone that time, left and Petty Officer 2nd Class Clowe went back inside the building. [ 19 ] The court also learned, through the testimony of Dr Labonté, who is the psychiatrist that Private Vezina has consulted for the last two years, that: a. Private Vezina was referred to Mental Health Services in February 2011 for an assessment of depression, further to declaring to a friend her intention to harm herself; b. Private Vezina has an extensive past psychiatric history starting at age thirteen.

She had used substances including cocaine, marijuana, and alcohol since an early age; c. she made a diagnosis of substance abuse and she noted residual PTSD symptoms with some anxiety features; d. Private Vezina met an addiction counsellor, but stopped consultation in November 2011; e. it has been difficult to engage Private Vezina in therapy because her motivation had fluctuated depending on the circumstances of her life. Essentially, she will start to disengage when she starts to feel better, making it difficult to work with her in relapse prevention and at improving her coping skills; f.

Private Vezina was not compliant with her medication; g. Private Vezina is very dedicated to her family, which includes her partner and her partner's children; h. she recommends that Private Vezina gets involved in an inpatient programme to deal first with her substance abuse, and then to deal with her PTSD symptoms and anxiety features;

i. further to an incident at the beginning of the month of May 2013, she forced Private Vezina to be hospitalized against her will for a period of 72 hours. Private Vezina was kept at that hospital in Barrie against her will for an additional period of 14 days by medical authorities; and j. she supported a recommendation made to change Private Vezina's medical category that would likely result in having her released from the Canadian Forces.

Essentially, she would not be suitable for service in the Canadian Forces due to her mental health situation. [ 20 ] Private Vezina also testified on her own behalf during sentence proceedings. She told the court: a. she declared openly the drugs she used in the past when she joined the Canadian Forces; b. she was not using drugs when she joined the Canadian Forces. She started using drugs when she got injured to her knee during the basic training programme. She did that because of peer pressure.

It was a bad crowd and she made a bad choice; c. further to her knee surgery and her rehabilitation, she stopped using drugs and when back on the basic training course. She succeeded on her course and won a trophy as the best athlete. Some time after her arrival at Canadian Forces Base Borden she started to use drugs again; d. she met her partner during the summer of 2011 and has lived with her since that time. Her partner's children were apprehended in November 2011. She had stopped using drugs two months prior to that event and did not use any for a period of ten months.

She also stopped seeing her social worker because she considered that she was doing better; e. she started to see her social worker again in May 2012, further to charges being laid against her. She started again using drugs, experiencing some relapse; f. further to some domestic issues involving her partner and her partner's mother on 7 May 2013, her partner's children were apprehended again by CAS. They are currently with their biological father. At that same period of time, her partner went missing and it initiated a series of events which ended up with her being hospitalized.

She was tested for cause and results were positive for marijuana and cocaine; g. she is ready to undergo an abuse substance programme. Her motivation is that it would constitute a step to get back the children. The medical officer must approve that programme in order to allow her to do this during working days. She was tested recently for drugs and results were negative; h. her financial situation is difficult for a long time now; and i. her partner had used drugs in the past. Her relationship with her partner is pretty rocky and in doubt.

She feels pretty horrible, upset, and mad. [ 21 ] 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 considers as aggravating the objective seriousness of the offences. The offences you were charged with were laid in accordance with

section 130 of the National Defence Act for trafficking in a drug contrary to subsection 5(1) of the Controlled Drugs and Substances Act . This type of offence is punishable by imprisonment for life or to less punishment when trafficking in a substance included in

Schedule I;

b. secondly, the subjective seriousness of the offences; that for the court covers four aspects: i. The first aggravating factor is the trivial approach you have for using and selling drugs in theCanadian Forces, which is your social and your work environment. You made it easy to others for getting drugs without having anyregret. In addition, you continually put in jeopardy your capacity and ability to carry out your tasks and those entrusted to your peers.

The example you provided to other members in your complete disrespect of the zero tolerance policy regarding drug use by members ofthe Canadian Forces clearly spoke by itself. You demonstrated completely unacceptable behaviour on that very serious subject; ii. The second aggravating factor is the premeditation attached to those circumstances. What you didwas entirely planned out and is not the result of a decision made on the spur of the moment without having been thought out beforehand.

You clearly decided to help a fellow soldier to get cocaine, and received some low personal financial benefit each time from thattransaction; iii. The nature of the drug involved in the transaction. Various courts in Canada, including the SupremeCourt of Canada, have clearly established that cocaine is considered as a dangerous drug that causes immeasurable harm to society. Thiscourt shares that opinion, especially considering the military context; and iv.

In addition, the court considers to be aggravating the fact that the offences took place on CanadianForces Base Borden, a defence establishment. [22] There are also mitigating factors that I have considered: a. your age and your career potential as a member of the Canadian community; being 22 years old, you have many years ahead tocontribute positively to the Canadian society; b. the fact that you had to face this court martial, which was announced and accessible to the public and which took place in thepresence of some of your peers, has no doubt had a very significant deterrent effect on you and on them.

It sends the message to othersthat the kind of conduct you displayed regarding drugs will not be tolerated in any way and will be dealt with accordingly; c. the fact that it was non-commercial trafficking involving a small quantity of drugs. Clearly you were not part of a major traffickingnetwork established on the base.

The extent of your activities was limited to those who were getting close to you and you did not haveany systemic approach in order to sell drugs; d. your mental health issue, your family, and financial situation that you’re going through must be considered because it assists thecourt to understand why you are now before it.

Those factors do not constitute an excuse for what you did, but it helps to explain andunderstand what made it easier on you to commit those offences; and e. the fact that you do not have any annotation on your conduct sheet or any criminal record related to similar offences. [23] Concerning the fact for this court to impose a sentence of incarceration to Private Vezina, it has been well established in theSupreme Court of Canada's decision in Gladue (SCC), [1999] 1 SCR 688, at paragraphs 38 and 40, that incarcerationshould be used as a sanction of last resort.

The Supreme Court of Canada specified that incarceration under the form of imprisonment isadequate only when any other sanction or combination of sanctions is not appropriate for the offence and the offender. This court is ofthe opinion that those principles are relevant in a military justice context, taking in account the main differences between the regimes forpunishments imposed by a civilian tribunal sitting in criminal matters and the one set up in the National Defence Act for a servicetribunal.

This approach was confirmed by the Court Martial Appeal Court in Baptista, 2006 CMAC 1, at paragraphs 5 and 6, where thecourt also said that incarceration should be imposed as a last resort. [24] The Court Martial Appeal Court also clearly stated in its decision of R v Dominie, 2002 CMAC 8, at paragraph 5, and

reaffirmed in R v Taylor , 2008 CMAC 1 , at paragraph 27 , that imprisonment may constitute the minimum necessary punishment for military members involved in the trafficking of cocaine. In Dominie , the CMAC said: Trafficking in crack cocaine on numerous occasions, even though it is non-commercial in nature, generally requires the imposition of actual imprisonment even for civilian offenders. In respect of military offenders, general deterrence requires that the military know that they will be imprisoned if they deal in crack cocaine on military bases.

Suspended sentence simply is not available, except in the rare case of extremely mitigating circumstances. [ 25 ] Here in this case, considering the nature of the offences, which are criminal offences per se , the circumstances they were committed, the applicable sentencing principles, the aggravating and the mitigating factors mentioned above, I conclude that there is no other sanction or combinations of sanctions other than incarceration that would appear as an appropriate punishment in this case. [ 26 ] Now, what would be the appropriate type of incarceration in the circumstances of this case?

The military justice system has disciplinary tools 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 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 Forces, but also from the perspective of the exercise of concurrent criminal jurisdiction. [ 27 ] It seems clear to this court that incarceration in the form of imprisonment is the only appropriate sanction in the circumstances and that 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. [ 28 ] The question now is what the duration of such a sentence of imprisonment should be to protect the public and maintain discipline? The prosecutor suggested 12 months, while the defence counsel recommended 30 days. [ 29 ] As mentioned by the Court Martial Appeal Court in Lee , at paragraph 29 : The Military Judge noted that trafficking is a serious offence carrying a maximum sentence of life imprisonment.

He referred to various precedents, including Dominie and Taylor , above, and observed that some offences are treated even more seriously in the military than in Canadian society as a whole. Drug trafficking is one of them. [ 30 ] As noted by the Court Martial Appeal Court in Taylor , sentences in trafficking ranged from 40 days to 16 months. In Ellis , the Court Martial Appeal Court confirmed a sentence of nine months of imprisonment for offences involving similar circumstances with the present case.

In Lee , despite being a secondary party to the offence of trafficking in cocaine, the Court Martial Appeal Court confirmed a sentence of five months' imprisonment.

In the court martial of R v Cheston, 2011 CM 1001 , Judge Dutil imposed a sentence of imprisonment for a period of nine months to the offender further to pleas of guilty to three counts of trafficking in marijuana and one count of trafficking in cocaine. [ 31 ] Considering the nature of the offences, the fact that this court shall treat them even more seriously considering the military context, the applicable sentencing principles, including sentences imposed on similar offenders for similar offences committed in similar circumstances by military and civil tribunals, the aggravating and mitigating factors mentioned above, I conclude that imprisonment for a period of six months would appear as the appropriate and necessary minimum punishment in this case. [ 32 ] In addition, this punishment will remain on your conduct sheet unless you get a pardon for the criminal record you are getting today.

The reality is that your conviction will carry out a consequence that is often overlooked, which is that you will now have a criminal record and it is not insignificant. [ 33 ] 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. [ 34 ]

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. [ 35 ] 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. [ 36 ] The National Defence Act does not contain any particular criteria for the application of

section 215. To this day, the courts martial's

interpretation of its application is quite clear and has been established by various military judges in other cases. As a military judge, I articulated my approach concerning this matter in the court martial of R v Paradis , 2010 CM 3025 and reiterated it in R v Masserey , 2012 CM 3004 . [ 37 ] Essentially, if the offender demonstrates on a balance of probabilities that her particular circumstances or the operational requirements of the Canadian Forces justify the necessity of suspending the sentence of imprisonment or detention, the court will make such an 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 would undermine the public trust in the military justice system as part of the Canadian justice system in general. If the court finds that that it would not, the court will make the order. [ 38 ] Private Vezina has had a substance abuse problem from her adolescence to this day. She has had fluctuation in her ability to get rid of this problem, and as of today, she is cooping with it.

Her personal life did not make it easier on her to succeed, especially considering that she still has to live with mental health issues that would be addressed properly only when she will be able to control her substance abuse problem. [ 39 ] Her personal life is still difficult at this time.

Her personal relationship with her partner is difficult and she still has to do some things in order to convince authorities that she is reliable enough to take care of her partner's children. [ 40 ] She still has to undergo various military discipline and civilian criminal proceedings for past events and those issues are not resolved yet. [ 41 ] Obviously, things have not really changed for Private Vezina recently in order to get on with her life in a better manner. It is true that she has recently started to realize that things must change.

However, this situation does not amount to a situation where her personal circumstances would be mitigating to the extent that it would justify the suspension of the sentence of imprisonment by this court. [ 42 ] The fact that the offender would be best served by not serving incarceration time in order to provide her access to the best possible treatment cannot stand. As demonstrated by the time she spent at the hospital with new therapists, if she can have access to treatment and follow-up by qualified medical consultants during the time she serves her sentence of imprisonment, that purpose will be achieved.

My understanding from correctional civilian and military services is that she will have such access and support.

Her current psychiatrist, social worker, and addiction counsellor will be able to provide information to those involved in the treatment of the offender during the time she will spend in jail, as it was for the time she was recently hospitalized against her will. [ 43 ] It is my opinion that the offender has not demonstrated, on a balance of probabilities that it exists for her particular circumstances that would justify the necessity of suspending the sentence of imprisonment by the court. [ 44 ] 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 desirable and necessary for the safety of the offender or of any other person in the circumstances of this case, and must apply to her in the course of her duty or employment with the Canadian Forces, particularly having consideration to the criteria applicable under

section 109 of the Criminal Code in the context of an offence pursuant to

section 5 of the Controlled Drugs and Substances Act . Essentially, considering the personal mental health situation of the offender and the fact that this court is taking the perspective of the exercise of a concurrent criminal jurisdiction about this matter, it cannot go to something different than such result. It is the conclusion of the court that it cannot find any substantial reason to impose different terms and duration in the order that those that would have been mandatorily imposed on Private Vezina if she had been tried in a court of criminal jurisdiction.

[ 45 ] Then the court will issue a weapons prohibition order for a period of 10 years. [ 46 ] The prosecutor equally requested that the court make an order authorizing the taking of bodily samples for the purpose of forensic DNA analysis under subsection 196.14(3) of the National Defence Act .

The court can only make such an order in the circumstances if it is satisfied that it is in the best interests of the administration of military justice to do so after taking into consideration the nature of the offence and the circumstances surrounding its commission, any previous convictions by a service tribunal or civil court, any previous finding of not responsible on account of mental disorder for a designated offence, and the impact such an order would have on the person's privacy and security of the person, and shall give reasons for the decision. [ 47 ] This specific provision does not impose any burden on the prosecution or defence.

The prosecution seeking the order must put forward sufficient information to raise the issue. The court must then be satisfied after weighing and balancing all the relevant considerations that the order should be made. Drug trafficking is a very serious offence, which has a profound detrimental effect on society, and particularly cocaine . The circumstances surrounding the commission of the offences committed by Private Vezina have been thoroughly described by the court and they are very serious.

However, the extent of the trafficking was limited and was based directly on personal mental health and financial circumstances that, according to my opinion, would not justify such intrusion. This situation does not correspond in the circumstances of this case to the important interests served by the DNA data bank. It is my conclusion that these circumstances do not outweigh the public interest in favor of her best privacy and security interests; therefore, the court will not make the order.

FOR THESE REASONS, THE COURT: [ 48 ] SENTENCES you to imprisonment for a term of six months. [ 49 ] PROHIBITS you, pursuant to

section 147.1 of the National Defence Act , from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, including any of these things required in the course of the offender's duties or employment as a member of the Canadian Forces for a period of 10 years. Counsel: Major E. Carrier, Canadian Military Prosecution Services Counsel for Her Majesty the Queen Lieutenant-Commander B.G. Walden, Directorate of Defence Counsel Services Counsel for Private A.L. Vezina