R. v. Haire, 2018 CM 2015

COURT MARTIAL Citation: R. v. Haire , 2018 CM 2015 Date: 20180410 Docket: 201814 Standing Court Martial Canadian Forces Base Shilo Shilo, Manitoba, Canada Between: Her Majesty the Queen - and - Lieutenant-Colonel S.G. Haire, Offender Before: Commander S.M. Sukstorf, M.J. REASONS FOR SENTENCE (Orally) Introduction [ 1 ] Today, Lieutenant-Colonel Haire, admitted his guilt to one charge contrary to

section 129 of the National Defence Act ( NDA ). NEGLECT TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE Particulars : In that he, on or about, 21 September 2017, at or near Canadian Forces Base Shilo, failed to ensure that the chamber was empty when performing the unload drill on the C7A2 rifle, resulting in the discharge of one blank round. [ 2 ] The Court, having accepted and recorded his plea of guilty with respect to this charge, must now determine and pass

sentence on that charge. The evidence before this Court includes a Statement of Circumstances which reads as follows: “STATEMENT OF CIRCUMSTANCES 1. During the month of September 2017, LCol Haire, Commanding Officer of 1 Royal Canadian Horse Artillery, participated in EX LIMBER GUNNER at Canadian Forces Base Shilo. Throughout the exercise, all personnel were in the possession of a C7A2 rifle and blank ammunition, including LCol Haire. 2. On 21 September 2017, at approximately 2330 hours, LCol Haire and his tactical party returned to the N133 compound after departing the CFB Shilo Range and Training Area.

Once at the compound, all members of the party began to unload and verify all serialized equipment. As the equipment was being unloaded, members of the tactical party began clearing their weapons. 3. LCol Haire picked up his C7A2 service rifle, and properly completed the unload drill by removing the magazine and pulling back on the cocking handle twice to eject the blank round that was loaded in the chamber. LCol Haire then released the action forward and squeezed the trigger while the rifle was pointed in a safe direction. 4.

Once LCol Haire properly completed his drills on his own service rifle, he noticed that Bdr Simard, a member of the tactical party, had not yet cleared his weapon. LCol Haire picked up Bdr Simard’s weapon, ensured that the selector switch was at safe, removed the magazine and pulled back on the cocking handle twice. However, not knowing that there was a blank round in the chamber, LCol Haire did not fully cock the action to the rear. Therefore the blank round was not properly ejected from the chamber.

After LCol Haire cocked the weapon, he visually inspected the chamber to see if a blank round had been ejected from the chamber. Due to the low lighting conditions at the time LCol Haire was not able to confirm that a blank round had been ejected. 5. At that point, LCol Haire pointed the weapon in safe direction and squeezed the trigger. The rifle fired off the blank 5.56 mm round that had remained in the chamber. This was witnessed by several subordinates.

Immediately, LCol Haire stated, “I had a negligent discharge”, or words to that effect, and turned the rifle over to MCpl Gradwell to have it inspected by a weapons technician to confirm its serviceability. After completing a series of tests, the weapons technician, Sgt Todoschuck, had determined that the rifle was serviceable and there was no reason for it to malfunction in any way. 6. Within approximately 30 minutes following the unauthorized discharge, LCol Haire contacted his superior officer and his Regimental Sergeant Major by email.

He indicated that he had just had a negligent discharge, set out the circumstances, provided a witness list and directed his RSM to commence a disciplinary investigation. 7. Following a unit disciplinary investigation, LCol Haire was charged with one count of neglect to the prejudice of good order and discipline on 1 December 2017. Charges were referred to the Director of Military Prosecutions on 5 December 2017.

A charge of neglect to the prejudice of good order and discipline was preferred against LCol Haire on 13 February 2018 and LCol Haire, through his defence counsel, indicated on that same date that he wished to plead guilty to the charge.” [ 3 ] An Agreed Statement of Facts was also entered as evidence, which reads as follows: “AGREED STATEMENT OF FACTS 1. LCol Haire has been a member of the Canadian Armed Forces since 1994. In that time he has served in variety of positions including several key leadership positions.

At the time of the unauthorized discharge, LCol Haire was the Commanding Officer of 1 Royal Canadian Horse Artillery, an artillery unit based at Canadian Forces Base Shilo. 2. As the commanding officer of a combat arms unit, LCol Haire is expected to be proficient in the handling of his personal weapon and is responsible to show leadership in this area to all those members who fall under his command.

3. For members of the combat arms, proper and efficient weapons handling is critical to the integrity and effectiveness of a fighting force. It affects how capably that fighting force engages the enemy and the trust that each member has in one another as a combatant on the field of battle. 4. An unauthorized discharge, fired as a result of carelessness or negligence, demonstrates a failure to treat the weapon with the care and attention it deserves and, in some circumstances, can have fatal consequences. 5.

While performing the unload drill on Bdr Simard’s weapon, LCol Haire failed to exercise the necessary care and attention that was required of him. By not taking the necessary steps to ensure that the blank round was properly ejected from the chamber his actions constituted a marked departure from the expected standard of care. 6. The unauthorized discharge fired by LCol Haire was prejudicial to good order and discipline. Within any combat arms unit, soldiers must be able to rely on their fellow comrades without fail.

Where an unauthorized discharge occurs as the result of negligence it creates an atmosphere of doubt and risks the future effectiveness of the unit. 7. The fact that the unauthorized discharge was a blank round instead of a live round is immaterial. Weapons handling drills do not account for any difference in the type of ammunition being used. Whether performing the drill with live rounds or blanks rounds, the drill remains the same. 8. Following the unauthorized discharge, LCol Haire demonstrated accountability for his actions and immediately admitted his error.

On his own accord, LCol Haire immediately made his superior officer aware of the incident and ordered his RSM to commence an investigation. 9. Throughout the investigation, LCol Haire was cooperative with investigators and provided multiple statements without hesitation.

LCol Haire’s acceptance of responsibility is further evidenced by the fact that he indicated his intention to plead guilty on the very same day that a charge was preferred against him.” Joint submission [ 4 ] In a joint submission, counsel recommend that I impose a sentence of a fine in the amount of $500. [ 5 ] Most recently the Supreme Court of Canada in R. v.

Anthony-Cook , 2016 SCC 43 clarified that a trial judge must impose the sentence proposed in a joint submission “unless the proposed sentence would bring the administration of justice into disrepute, or is otherwise not in the public interest.” [ 6 ] As you heard when I verified the guilty plea earlier, by entering into a plea bargain, the constitutional right to be presumed innocent is given up and this should never be done lightly. In fact, by virtue of the oath taken by all service members, this right is one we all stand to protect.

Thus, in exchange for making a plea, the accused must be assured of a high level of certainty that the Court will accept the joint submission. Assessing the joint submission [ 7 ] The prosecutor who proposes the sentence will have been in contact with the chain of command. He is aware of the needs of the military and its surrounding community and is responsible for representing those interests.

Defence counsel, on the other hand, acts exclusively in the accused’s best interest, including ensuring that the accused’s plea is a voluntary and informed choice and unequivocally acknowledges his guilt. [ 8 ] As members of the legal profession and accountable to their respective law societies, the court relies heavily on their professionalism and judgement as well as their duty to the court.

Evidence [ 9 ] In this case, on consent, the prosecutor read the Statement of Circumstances and the Agreed Statement of Facts and provided the documents required at the Queen’s Regulations and Orders for the Canadian Forces (QR&

O) article 112.51 that were supplied by the chain of command under QR&O

article 111.17. [ 10 ] In addition, the Court benefitted from submissions from counsel, including an outline of relevant case law being R. v. Lieutenant-Colonel R.V. Smith , 2006 CM 35 , R. v. Coupal , 2009 CM 3024 , R. v. Fortin , 2012 CM 1001 and R. v.

McManus , 2012 CM 3019 to support their joint position on sentence, while highlighting the facts and considerations relevant to Lieutenant-Colonel Haire. [ 11 ] Counsel’s submissions and the evidence before the Court have enabled me to be sufficiently informed of Lieutenant-Colonel Haire’s personal circumstances so I may consider any indirect consequence of the sentence, in imposing a punishment adapted specifically to him and the offence committed. The offender [ 12 ] Lieutenant-Colonel Haire is 44 years old and enrolled in the Canadian Armed Forces (CAF) in August of 1994.

He has served for approximately 24 years as an artillery officer and has been awarded a number of military decorations and medals. He has earned the Canadian Forces Decoration, General Campaign Star – South West Asia (GCS-SW) and the 1st Rotation Bar to the GCS-SWA, as well as a Chief of Defence Staff Commendation. Aside from serving in Afghanistan, he has also served in Bosnia and Haiti (with Canadian Expeditionary Force Command). He has obviously served his country extremely well.

Objectives of sentencing to be emphasized in this case [ 13 ] The prosecution has emphasized that, in their negotiations, both he and defence counsel closely considered the objectives of sentencing. Based on the submissions of counsel, sentencing should focus on the objectives of denunciation and general deterrence. [ 14 ] The Court highlights that the principle of general deterrence means that the sentence should deter not only Lieutenant-Colonel Haire from reoffending, but also to deter any other CAF members from committing similar or comparable offences.

In making the joint submission, counsel advised the Court that they have taken into account all relevant aggravating and mitigating factors. Aggravating factor [ 15 ] After hearing the submissions of both counsel, the Court highlights the following aggravating factor: position/rank. At the time of the incident, Lieutenant-Colonel Haire was serving as the Commanding Officer (CO), in a position of authority as the most senior person responsible for ensuring the safety and welfare of all his subordinates. On the day in question, his unit was engaged in an exercise.

During the plea verification process, the court explained that the standard of care that his conduct is measured against is that of an infantry officer. He did not have to meet an elevated standard because he was the CO. However, the court acknowledged that as the CO, he understood clearly what that standard is and as he acknowledged himself, it was his role to enforce that standard. Mitigating factors [ 16 ] The Court highlights the following mitigating factors: (

a) Length of service and conduct sheet. Lieutenant-Colonel Haire has enjoyed a very successful and untarnished military career. He has no conduct record for the court to consider. This incident was out of character for Lieutenant-Colonel Haire but his immediate assumption of responsibility is particularly noteworthy.

(

b) Guilty plea. Lieutenant-Colonel Haire’s guilty plea at the earliest opportunity, reflects both his genuine remorse and the acceptance of responsibility for his conduct and must be given significant weight in the consideration of sentence. Counsel noted that immediately upon the incident occurring, he took action, advising his Regimental Sergeant Major as well as his chain of command. As defence counsel stated, it is a rare case, where immediately upon hearing of the charges, an accused advises his counsel that he intends to plead guilty at the earliest opportunity.

His action reflects his willingness to take immediate responsibility to ensure that this incident is addressed quickly and the unit can move on. His guilty plea saved the Court, counsel, his unit, as well as the unit supporting the court martial, significant resources that can be allocated elsewhere. (

c) Level of cooperation. From the initial reporting of this incident, Lieutenant-Colonel Haire was not just cooperative but he was in fact proactive and ensured that an investigation was done and completed in a timely manner. I commend the entire chain of command on their exceptional efforts in addressing this matter so quickly and responsibly. [ 17 ] Before I pronounce sentence, I wish to acknowledge Lieutenant-Colonel Haire’s exceptional leadership and professional approach in dealing with this incident.

His address to the Court was heartfelt and it is clear that he clearly understands the responsibilities of leadership. At all levels, we make mistakes, but it is how we react to our errors that reflects our true character. As he very eloquently explained to the Court, safe weapon handling does not happen overnight. In fact, there is no switch that enables us to turn on safe weapon handling simply when we deploy into operations.

This is why he insisted that 1 Royal Canadian Horse Artillery train with blank rounds in every aspect of their training. [ 18 ] Every member of the CAF must be capable of handling and controlling their own weapons. However, safe weapon handling on the part of individual members of the CAF requires an inculcated pattern of practice. It starts in training, in units, with leaders such as Lieutenant-Colonel Haire instilling and enforcing the standard required in operations so that it will be instinctive when a member is asked to deploy.

Conclusion [ 19 ] After considering counsel’s submissions in their entirety and considering all the evidence before the Court, I must ask myself whether the proposed sentence would be viewed by the reasonable and informed CAF member, as well as the general population, as a breakdown in the proper functioning of the military justice system.

In other words, would the acceptance of the proposed sentence cause the CAF community and its members to lose confidence in the military justice system? [ 20 ] Considering all of the factors, the circumstances of the offence and of the offender, the indirect consequence of the finding, the gravity of the offence and the previous character of the offender, I am satisfied that counsel have discharged their obligations in making their joint submission. FOR THESE REASONS, THE COURT: [ 21 ] FINDS you guilty of the first charge, contrary to

section 129 of the NDA for neglect to the prejudice of good order and discipline. [ 22 ] SENTENCES you to a fine in the amount of $500, payable forthwith. Counsel: Lieutenant-Colonel T.P. Farris and Captain M.-D. Ferron for the Director of Military Prosecutions Lieutenant-Commander J.E. Léveillé, Defence Counsel Services, Counsel for Lieutenant-Colonel S.G. Haire