R. v. Desroches, 2016 CM 1009

COURT MARTIAL Citation: R. v. Desroches , 2016 CM 1009 Date: 20160517 Docket: 201582 Standing Court Martial Gagetown Courtroom Gagetown, New Brunswick, Canada Between: Her Majesty the Queen - and - Corporal M.G. Desroches, Offender Before: Colonel M. Dutil, C.M.J. REASONS FOR SENTENCE (Orally) [1] Corporal Desroches admitted his guilt to one count of conduct to the prejudice of good order and discipline, contrary to

section 129 of the National Defence Act (NDA) for having engaged into a civil employment or undertaking contrary to paragraph 19.42(1) of the Queen’s Regulations and Orders for the Canadian Forces .

The statement of particulars of the charge reads as follows: “Particulars : In that he, on or about 30 May 2015, in Saint-John, New-Brunswick engaged into a civil employment or undertaking with Elite 1 MMA Productions Inc. contrary to paragraph 19.42(1) of the Queen’s Regulations and Orders .” [2] The Statement of Circumstances and an Agreed Statement of Facts, filed as Exhibits 6 and 7 in the proceedings, provide the relevant information to assist the Court in determining sentence. I will reproduce those documents in their entirety and they read as follows: “STATEMENT OF CIRCUMSTANCES

1 . At all material times, Corporal Desroches was a member of the Regular Force, Canadian Armed Forces (CAF). From 9 June 2013 to 15 September 2015, Corporal Desroches was posted to the Joint Meteorological Centre (JMC), Canadian Forces Base Gagetown, and employed as a Meteorological Technician. Corporal Desroches was posted to Joint Personal Support Unit New Brunswick and Prince- Edward Island on 15 September 2015. 2 .

On 3 August 2013, Corporal Desroches submitted a request to the Commanding Officer of JMC to obtain the authorization to engage in civil employment in order to participate in professional mixed martial arts. Cpl Desroches’ written request confirmed that all necessary steps would be taken to ensure that the proposed career will not be detrimental to the interests of the CAF. 3 . On 4 September 2013, the Commanding Officer of the JMC at the time, Lieutenant colonel Barry, approved Corporal Desroches’ request to engage in civil employment as a Professional Mixed Martial Arts (MMA) Fighter. 4 .

On 14 July 2014, this authorization was formally rescinded in writing by Lieutenant colonel Barry after Corporal Desroches sustained a significant hand injury during the course of his civil employment. Lieutenant colonel Barry then determined in accordance with Queen’s Regulations and Orders 19.42 that it was detrimental to the interest of the CAF for Corporal Desroches to continue with his civil employment. Corporal Desroches was informed of the decision during a meeting with Lieutenant colonel Barry and Chief Warrant Officer Curtis.

He then stated he understood the reasoning for the decision and acknowledged it in writing on 21 July 2014. 5 . The chain of command did not authorize Coporal [ sic ] Desroches to hold a civilian employment as a Professional MMA Fighter since the 21 July 2014. 6 . On 21 April 2015, despite that fact that the authorization was rescinded and without asking for a new authorization, Corporal Desroches entered into a contract with Elite 1 MMA Productions to take part as a Fighter in a contest in Saint John, New Brunswick, on 30 May 2015. 7 .

On 27 April 2015, the Operations Officer of JMC, Captain Cochrane, and the Operations Master Warrant Officer of JMC, Master Warrant Officer Rusconi, met with Corporal Desroches to remind him that he was not authorized by his chain of command to take

part in the MMA contest as a Fighter when it came to their attention that Corporal Desroches intended to participate in a contest on 30 May 2015. 8 . On 12 May 2015, Captain Cochrane and Master Warrant Officer Rusconi met again with Corporal Desroches regarding his civil employment. Corporal Desroches was reminded in writing that he was not authorized by his Chain of command to participate in professional MMA competitions as a Fighter as it had previously been determined that this civil employment was detrimental to the CAF. He was specifically directed in writing not to fight in the event of 30 May 2015.

He was also reminded that, while being on a return to work program, the goal was for him to recover in a low stress environment. Corporal Desroches acknowledged the direction in writing but mentioned that he still did not know if he was going to participate in the event or not despite the order given to him and did not confirm that he would cease his civil employment. 9 . On 30 May 2015, Corporal Desroches fought in the MMA contest in Saint John, New Brunswick and received compensation for the event.

Members of JMC attended the contest and after the event, official results and photographs of the contest were published on the Elite 1 MMA Facebook page and website. 10 . Corporal Desroches was not authorized to engage into professional MMA competitions as a Fighter and after being reminded about that and ordered not to participate, Corporal Desroches decided to participate regardless. His participation into the contest was known by his unit.

Corporal Desroches admitted that his conduct directly created a prejudice to good order and discipline and that such conduct erodes discipline within the CAF.” “AGREED STATEMENT OF FACTS CORPORAL M.G. DESROCHES’S PERSONAL CIRCUMSTANCES

1. Corporal Desroches has been placed on Recorded Warning for duration of 6 months with regards to the incident of the 30 May 2015. This remedial measure was initiated in June 2015. A signed copy of this Remedial Measure dated 2 June 2015 is introduced as an exhibit in these proceedings. 2. Corporal Desroches has successfully completed this Recorded Warning and has not been involved in any incidents since 30 May 2015. A Minute Sheet signed by Lt(

N) N.B. Hodgson attests of these facts and is introduced as an exhibit in these proceedings. 3. Cpl Desroches provided an incriminating statement during the course of the unit Disciplinary Investigation that led to these charges. He admitted to most elements of the offence through his statement. 4. Shortly after charges were preferred, Corporal Desroches instructed his Defence Counsel to resolve this matter efficiently and to proceed with a guilty plea. Prosecution was engaged quickly thereafter. 5. Cpl Desroches has been diagnosed with Major Depressive Disorder, severe, single episode by Major P.M.

Walker, Psychiatrist, on the 21st January 2015, as it appears from a Psychiatric assessment introduced as an exhibit in these proceedings. 6. Cpl Desroches has been under care of the Mental Health Clinic, 42 Health Services Centre, Gagetown, since the 12th January 2015. 7. Cpl Desroches receives psychotherapy treatment on a regular and continuous basis since January 2015. 8. Cpl Desroches has been prescribed with anti-depressors medication since January 2015. 9. Cpl Desroches has been declared Unfit for the Operational Environment on 06 October 2015, by Dr. N.

Lear, with the following recommendations: Unable to safely handle and effectively operate a personal weapon, or ammunition. As this appears from a Notification of change of Medical Employment Limitations (MEL) introduced as an exhibit in these proceedings. 10. These Medical Employment Limitations (MEL) are currently in effect. 11 . Cpl Desroches has been placed under Administrative Review concerning his MEL. The aim of this Administrative review is to determine if this member is breaching Universality of Service.

A bilingual message dated 3 March 2016 attests of these facts and is introduced as an exhibit in these proceedings. 12 . Cpl Desroches has no Conduct Sheet. 13 . Cpl Desroches is preparing for a potential Medical Release from the Canadian Armed Forces; he intends to travel to the Philippines while teaching Martial Arts.” [3] Prosecution and defence have made a joint submission on sentence where they recommend that Corporal Desroches be sentenced to a reprimand and a fine in the amount of $500 payable in two equal instalments of $250 each as of June 1st, 2016.

Although the Court is not bound by this joint submission, it can only reject it if the recommendation is contrary to the public interest or if the recommendation or submission would bring the administration of justice into disrepute. Their proposal falls within the acceptable range for this type of offence and, therefore, the Court is bound by that recommendation. [4] The fundamental purpose of sentencing at a court martial is to contribute to the respect of the law and the maintenance of military discipline.

The proposed joint submission must achieve the need for general deterrence and the denunciation of a conduct that showed clearly a blatant disregard, by the offender, of explicit and repeated directions, ordering the offender not to participate in professional

mixed martial arts fighting. Of course, the sentence must also assist in the rehabilitation of the offender. [5] Objectively a serious offence, it is the subjective gravity in this context that is the predominant element in the case today. In other words, the circumstances of the offence are the most aggravating factors that the Court considers. [6] However, there are some mitigating circumstances: (

a) I note, firstly, the guilty plea of the accused at the earliest opportunity, which is coherent with the offender’s earlier admissions during the investigation and his early instructions to his counsel to enter a plea of guilty. I consider that a genuine expression of remorse and full acceptance of responsibility for his totally inappropriate conduct. (

b) The absence of any disciplinary or criminal record. It is the first encounter of Corporal Desroches with the justice system, be it the civilian justice system or the military justice system. (

c) Thirdly, the mental health condition of the accused that existed at the time of the commission of the offence in the form of a major depressive disorder, which may have contributed in part to his conduct, according to the exhibit filed with the Court. (

d) Fourthly, I consider the successful compliance with the remedial measures imposed on the offender for that same improper conduct from June to December 2015. (

e) And, finally, the fact that he has been transferred to the Joint Personnel Support Unit in September 2015, in light of his medical condition and that his future employment in the Canadian Armed Forces is currently under review as a result of permanent medical limitations to meet the standards of universality of service. [7] Therefore, the Court accepts that the proposed sentence is the minimal sentence in the circumstances to achieve general deterrence and denunciation of the conduct. It is not contrary to the public interest nor would it bring the administration of justice into disrepute.

FOR THESE REASONS, THE COURT: [8] FINDS you guilty of the second charge for conduct to the prejudice of good order and discipline contrary to

section 129 of the National Defence Act [9] SENTENCES you to a reprimand and a fine in the amount of $500 payable in two consecutive monthly instalments of $250, beginning on 1st of June 2016. Counsel: Major M.E. Leblond for the Director of Military Prosecutions Major B.L.J. Tremblay, Defence Counsel Services, Counsel for Corporal M.G. Desroches