R. v. Hopkie, 2017 CM 3013

COURT MARTIAL Citation: R. v. Hopkie , 2017 CM 3013 Date: 20170828 Docket : 201741 Standing Court Martial Asticou Centre Gatineau, Quebec, Canada Between: Her Majesty the Queen - and - Commander D.J. Hopkie, Offender Before: Lieutenant-Colonel L.-V. d’Auteuil, M.J. REASONS FOR SENTENCE (Orally) [ 1 ] Commander Hopkie, having accepted and recorded a plea of guilty in respect of the first and only charge on the charge sheet, the court finds you now guilty of conduct to the prejudice of good order and discipline contrary to

section 129 of the National Defence Act ( NDA ), for having stated in an email that because of your health condition, you were ordered home, knowing that you had not been ordered home. [ 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 military activity in the Canadian Armed Forces (CAF).

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 ] Here, in this case, the prosecutor suggested to the Court a sentence of a severe reprimand and a fine in the amount of $3500 to $4000 for the offender. The offender’s defence counsel recommended to this Court to impose a fine in the amount of $200. [ 5 ] The fundamental purpose of sentencing in a court martial is to ensure respect for the law and the maintenance of discipline, and from a more general perspective, the maintenance of a just, peaceful and safe society. However, the law does not allow a military court to impose a sentence that would be beyond what is required in the circumstances of the case.

In other words, any sentence imposed by a court must be adapted to the individual offender and constitute the minimum necessary intervention since moderation is the bedrock principle of the modern theory of sentencing in Canada. [ 6 ] Keeping in mind this legal context, then 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 CAF; (

b) to denounce unlawful conduct; (

c) to deter the offender and other persons from committing the same offence or offences; (

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

e) to rehabilitate and reform offenders. [ 7 ] When imposing sentence, a military court must also take into consideration the following principles: (

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

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

c) the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

d) an offender should not be deprived of liberty, if applicable in the circumstances, if less restrictive sanctions may be appropriate in the circumstances; in short, the court should impose a sentence of imprisonment or detention only as a last resort as it was established by the Court Martial Appeal Court (CMAC) and the Supreme Court of Canada decisions; and (

e) lastly, any sentence to be imposed by the court should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [ 8 ] Here, sentencing in this case should focus mainly on the objective of denunciation, and, to a lesser degree, on the one of general deterrence.

It is important to remember that the principle of general deterrence means that the sentence should deter not only the offender from reoffending, but also to deter others in similar situations from engaging in the same prohibited conduct. [ 9 ] Commander Hopkie joined the CAF in August 1989, which is about 28 years ago, as a Maritime Surface and Sub-surface (MARSS) Officer. In June 1993, he was promoted to the rank of Lieutenant Navy. In June 2005, he was promoted to the rank of Lieutenant-Commander. During those years prior to that promotion, he was posted on several ships.

[ 10 ] During his second year as a Lieutenant-Commander, he received a commendation from the Chief of the Defence Staff of the CAF for his pivotal contribution to the creation of the Maritime Amphibious Unit of the Standing Contingency Force and the success of this new and unique unit as the Officer in Charge (OIC) during the Integrated Tactical Effects Experiment of November 2006. [ 11 ] In July 2007, he was deployed in Afghanistan for a period of 9 months.

As part of a team executing a planned operation in the Musa Quala district of Helmand, he was wounded due to hostile action coming from significant heavy fire from two PKM machine gun emplacements. In July 2016, a Sacrifice Medal application was initiated by a warrant officer and recommended by the commanding officer. [ 12 ] He got his military freefall parachutist qualification in 2009.

It must be noted that a parachuting incident resulted in a left shoulder injury and surgical treatment, leaving him with chronic pain and limited range of motion. [ 13 ] He was deployed again in Afghanistan from September 2010 to July 2011. [ 14 ] On his return, he was posted to Ottawa.

As established by his Personnel Evaluation Reports, due to his consistent high performance and his outstanding potential since the year 2006, he was promoted to the rank of commander in June 2014. [ 15 ] At the end of that same month, he was posted as the OIC of the Joint Information and Intelligence Fusion Centre (JIIFC) at Station Leitrim in Ottawa. [ 16 ] He met his direct supervisor in July 2014, which was Captain (Navy) Bishop, then now Rear-Admiral Bishop, to discuss about the mandate of the newly formed unit and his responsibilities as the OIC. [ 17 ] It must be noted that at the time of this posting, Commander Hopkie was considered by the Royal Canadian Navy as a candidate for the naval succession planning list and as the next potential Head of the Joint Explosive Ordnance Disposal Task Force. [ 18 ] On 14 November 2014, Commander Hopkie had his

Part II dive medical and was told by the physician to keep track of his blood pressure with a cuff and monitor because it was high. [ 19 ] The week after, on 19 November 2014, he went to the military pharmacy to pick up his heartburn medication. On location, he had a discussion with the pharmacist because he felt ill.

He was told that it could be because of his medication or because of a combination of his high blood pressure with the cold that was going around. [ 20 ] He then notified by email his second in command, Major Bedley, that he was going home for the next two days because he was not feeling well. [ 21 ] Later on the same day, Major Bedley reminded him about a mess dinner he was supposed to attend the day after.

Commander Hopkie replied to him by email in those terms: “I probably shouldn’t go after being ordered home for a couple of days.” [ 22 ] Major Bedley then confirmed to him by email that he would attend for him, considering he would not go. [ 23 ] Contrary to what Commander Hopkie said to Major Bedley, he had not been ordered home by a doctor and he knew that statement was untrue.

[ 24 ] On 28 January 2015, Major Bedley met with Colonel McLean and raised concerns about reasons for Commander Hopkie’s recent absence from the workplace over the last three months, including the incident on 19 November 2014. The day after, Colonel McLean met with Rear-Admiral Bishop to discuss the concerns raised by Major Bedley. [ 25 ] On 4 February 2015, Rear-Admiral Bishop met with Commander Hopkie to discuss those issues. He learned from the latter that there were some serious family problems.

He allowed him some time off on Tuesday afternoons for meetings Commander Hopkie had to attend with his stepdaughter regarding her mental health issues.

He also observed that Commander Hopkie was better in reporting absence from the workplace after that meeting. [ 26 ] However, still concerned by what happened before, on 6 February 2015, Rear-Admiral Bishop ordered Colonel McLean to conduct a Unit Disciplinary Investigation (UDI) concerning the allegations made against Commander Hopkie for the months of November and December 2014, and also the month of January 2015. [ 27 ] In the course of the UDI, Colonel McLean interviewed Commander Hopkie on 27 February 2015, who was duly cautioned and warned.

Further to this interview, Commander Hopkie provided additional comments by email on the statement he made. In respect of the period of 19 to 21 November 2014, he denied having stated to Major Bedley that the doctor ordered him to go home. [ 28 ] The UDI was completed in March 2015 and on 23 April 2015, six charges of Absence without Leave (AWOL) were laid against Commander Hopkie. On 2 July 2015, the Director of Military Prosecutions (DMP) preferred those charges. [ 29 ] This matter was initially set for trial in September 2016.

Due to the unexpected unavailability of the presiding military judge, the matter was postponed to November 2016. However, further to an application by the offender, the presiding military judge ordered a new trial date on 20 March 2017, due to the fact that the offender would undergo a shoulder surgery in November 2016. [ 30 ] The trial on the AWOL charges started on 20 March 2017 as ordered by the military judge and the prosecution presented its case.

However, at the end of it, a disclosure issue arose during the examination-in-chief of the last witness, which caused defence counsel to proceed with additional research and an application for disclosure that was dealt with by the court.

Once the disclosure matter was settled, then defence counsel announced, and presented at a later date, a motion in respect of the violation of some Commander Hopkie’s Charter rights for which he was seeking an order from the court to stay the proceedings. [ 31 ] On 5 July 2017, further to some discussion between the prosecutor and defence counsel, which led to a negotiated resolution of the full matter between the parties, the DMP withdrew all charges with leave of the court and preferred the charge currently before this court. [ 32 ] As you probably noted, I added some facts arising from the testimony of Rear-Admiral Bishop on the meeting he had with Commander Hopkie on 4 February 2015, in addition to those provided in the Statement of Circumstances.

I do not consider these facts as relevant to an aggravating or mitigating factor to be considered in this case, but as purely relevant to provide a better understanding of the circumstances. [ 33 ] In determining the sentence, the Court considered the following aggravating factors: (

a) The objective seriousness of the offence. The offence you were charged with was laid in accordance with

section 129 of the NDA and is punishable by dismissal with disgrace from Her Majesty’s service or to less punishment; (

b) From a subjective seriousness perspective, I shall note that the circumstances of this incident revealed a lack of integrity and honesty from you. Being trustworthy toward your subordinates was and is still a fundamental element to respect in order to exercise your leadership. If at some point, as it was for Major Bedley, there are concerns on your capacity to lead and make some decisions, it may potentially affect the conduct of any mission; and

(

c) Your position, experience and your rank put on you the duty to lead by example. Being in a leadership position, expectation about your behaviour in the workplace was very high. In behaving as you you’re your superior and subordinates were disappointed and less confident in your capacity to make proper decisions. [ 34 ] There are also mitigating factors that the Court considered:

a) First, there is your guilty plea. On the same day this charge was preferred by the DMP and brought before this court martial, you pleaded guilty to the charge. Essentially, the court understands that you are taking full responsibility for what you did;

b) You have had an excellent career with the CAF and the evidence is clear that your performance and potential has been recognized by your supervisors over the years. Your dedication and leadership is well known. In that context, the incident for which you were brought before this Court appears to be an isolated one, out of character;

c) The court considers you as a first-time offender, meaning that there is no annotation on your conduct sheet reflecting similar offences. There is no indication of criminal offences either in relation to what happened;

d) On the scale of gravity, this incident is very low. It appears that you were apparently sick but that your justification for not showing up did not reflect the fact that nobody ordered you to do so. Your misrepresentation of the reality had few and very limited consequences; and

e) Finally, I must consider your personal health condition. Your dedication to the CAF has had clearly an impact on your physical and mental health. In May 2015, about 6 months after the incident, you were diagnosed with Post-Traumatic Stress Disorder (PTSD) moderate to severe, depression and adjustment disorder with anxiety. Your PTSD diagnosis is tour-related, specifically to deployment in Afghanistan some years ago. In addition, a parachuting incident resulted in a left shoulder injury for which you still have problems today.

This overall situation had negatively affected your mood, sleep, concentration, level of functioning and quality of life. [ 35 ] As represented by counsel, such situation may call, as a matter of sentence to be imposed by the court, for a severe reprimand, a reprimand, a fine or any combination of those three. [ 36 ] Counsel were unable to provide the court with case law reflecting the actual set of facts before the court. Prosecution chose to present case law in relation to offences involving a dishonest act committed by an officer.

However, those case law do not reflect the commission of an offence of such low degree of gravity as the one before this court. [ 37 ] Commander Hopkie is an excellent officer who misrepresented to his subordinates the authority allowing him to go home because he was sick. Instead of just following the recommendation of the pharmacist and his own judgment, it would have been necessary for him to go to the sick parade and get from a doctor such recommendation. This lack of judgment in assessing his own situation had little or no impact. However, this type of conduct from a first-time offender must be denounced.

From the court’s perspective, a fine would be sufficient to reflect the application of such objective. [ 38 ] The court cannot accept the suggestion of the prosecution to impose a very high amount. It would not reflect the degree of gravity of the offence and the character of the offender. [ 39 ] The court is of the opinion that a fine of $500 would be the proper and just amount in the circumstances. [ 40 ] I do not see the necessity to express the disapproval of the conduct of the offender by imposing a reprimand in the circumstances.

By holding this court martial, a clear message has been expressed that such conduct won’t be tolerated. FOR THESE REASONS, THE COURT:

[ 41 ] FINDS you guilty of conduct to the prejudice of good order and discipline contrary to

section 129 of the NDA ; and [ 42 ] SENTENCES you to a fine in the amount of $500. The fine is to be paid in two monthly instalments of $250 commencing on 1 September 2017. In case you are released before the full amount of the fine is paid, then the remaining amount should be paid before your release from the CAF. Counsel: The Director of Military Prosecutions as represented by Major C. Walsh Mr E. Thomas and Captain P. Cloutier, Defence Counsel Services, Counsel for Commander D.J. Hopkie