R. v. Brunelle, 2017 CM 4001

COURT MARTIAL Citation: R. v. Brunelle , 2017 CM 4001 Date: 20170111 Docket: 201566 Standing Court Martial 5th Canadian Division Support Base Gagetown Oromocto, New Brunswick, Canada Between: Her Majesty the Queen - and - Second Lieutenant J.A. Brunelle, Offender Before: Commander J.B.M. Pelletier, M.J. Restriction on publication: Pursuant to

section 179 of the National Defence Act and

section 486.4 of the Criminal Code of Canada , The Court directs that any information obtained in relation to this trial by Standing Court Martial that could identify anyone described in these proceedings as a victim or complainant shall not be published in any document or broadcasted or transmitted in any way. REASONS FOR SENTENCE (Orally) Introduction [ 1 ] Second Lieutenant Brunelle, having accepted and recorded your plea of guilty in respect of the only charge on the charge sheet, the Court now finds you guilty of that charge under

section 93 of the National Defence Act ( NDA ) for disgraceful conduct. A joint submission is being proposed [ 2 ] I now need to impose the sentence. This is a case where a joint submission is made to the court. Both prosecution and

defence counsel recommended that I impose a sentence composed of the punishments of a severe reprimand and a fine of 3000 dollars. [3] This recommendation of counsel severely limits my discretion in the determination of an appropriate sentence. I am notobliged to go along with whatever is being proposed. However, as any other trial judge, I may depart from a joint submission only if theproposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest. This is the testpromulgated by the Supreme Court of Canada in R. v.

Anthony-Cook, 2016 SCC 43. [4] While it is my duty to assess the acceptability of the joint submission being made, the threshold to depart from it isundeniably high as joint submissions respond to important public interest considerations. The prosecution agrees to recommend asentence that the accused is prepared to accept, avoiding the stress of a trial and providing an opportunity for offenders who areremorseful to begin making amends.

The benefits of joint submissions are not limited to the accused but extend to victims, witnesses, theprosecution and the administration of justice generally; by saving time, resources and expenses which can be channelled into othermatters.

The most important gain to all participants is the certainty a joint submission brings, of course, to the accused, but also to theprosecution who wishes to obtain what a military prosecutor concludes is an appropriate resolution of the case in the public interest. [5] Yet, even if certainty of outcome is important for the parties, it is not the ultimate goal of the sentencing process. I must alsokeep in mind the disciplinary purpose of the Code of Service Discipline and military tribunals in performing the sentencing functionattributed to me as military judge. As noted by the Supreme Court in R. v.

Généreux, (SCC), [1992] 1 S.C.R. 259, theCode of Service Discipline is primarily concerned with maintaining discipline and integrity in the Canadian Armed Forces (CAF) butserves a public function as well by punishing specific conduct which threatens public order and welfare. Courts martial allow themilitary to enforce internal discipline effectively and efficiently. Punishment is the ultimate outcome once a breach of the Code ofService Discipline has been recognized following trial or a guilty plea.

The sentencing usually takes place on a military establishment, inpublic, in the presence of members of the offender’s unit. [6] The imposition of a sentence at court martial proceedings, therefore, performs a disciplinary function.

Article 112.48 of theQueen’s Regulations and Orders for the Canadian Forces (QR&

O) provides that a military judge shall impose a sentence commensuratewith the gravity of the offence and the previous character of the offender. When a joint submission is made, the military judge imposingpunishment should ensure, at a minimum, that the circumstances of the offence, the offender and the joint submission are not onlyconsidered but also adequately laid out in the sentencing decision to an extent that may not always be necessary in many busy downtowncriminal justice courts.

The particular requirements of sentencing at courts martial do not detract from the guidance provided by theSupreme Court on joint submissions, as laid out at paragraph 54 of R. v. Anthony-Cook. Matters considered [7] In this case, the prosecutor read a Statement of Circumstances which was entered in evidence as Exhibit 6, along with otherdocuments provided by the prosecution as required at QR&O 112.51. The prosecution also entered an Agreed Statement of Facts asExhibit 7 to inform the Court as to the career status of the offender since the events that lead to the charge.

Finally, the prosecutor, withconsent of the defence, provided on record some information received from the victim, relating to the impact that the offence had onher. [8] The Court heard from five witnesses called by defence in mitigation. They testified as to the performance, conduct andpotential of Second Lieutenant Brunelle at the time and in the period of over two years since the commission of the offence.

The defencealso produced, as Exhibit 8, several course and personal development reports covering a period from May 2014 to August 2016. [9] In addition to this evidence, the Court also benefitted from the submissions of counsel that support their joint position onsentence on the basis of the facts and considerations relevant to this case, as well as by comparison with judicial precedents in similarcases.

These submissions and the evidence, including the information received from the victim and the testimony of mitigationwitnesses, allow me to be sufficiently informed to meet the requirement to consider any indirect consequence of the sentence, andimpose punishment adapted to the individual offender and the offences committed. The offender [10] First, the offender. Second Lieutenant Brunelle is a 36 years old artillery officer employed at the Royal Regiment ofCanadian Artillery School here in Gagetown. He joined the Canadian Forces at the age of 33, commencing basic training in May 2014 in

St-Jean, Quebec. He moved to Gagetown to continue his training, first completing the Basic Military Officer Qualification (BMOQ) Land course in November 2014, the course during which the offence was committed. He then moved on to training as a field artillery officer, completing two artillery troop commander courses. Since December 2015, he has been employed mainly as troop commander with the artillery school while awaiting the outcome of disciplinary measures taken against him.

The uncertainty relating to these measures made Second Lieutenant Brunelle ineligible for promotion in his entry in the promotion zone on 3 May 2015. I am also informed that he will be subject to an administrative review of his career with the CAF following this trial, which could result in his release or lesser measures. [ 11 ] Witnesses called by the defence have provided the Court with their views on Second Lieutenant Brunelle’s performance and potential as a member of the CAF.

By and large, witnesses testified that Second Lieutenant Brunelle was successful in training, as evidenced by the reports at Exhibit 8, and that he transitioned successfully to an important role as a junior troop commander with the regiment. A fellow student on basic training observed that Second Lieutenant Brunelle readily helped others and treated everyone, including women, with respect. He opined, as did other witnesses, that the events leading to the charges were out of character for him.

Three superiors at the regiment testified that Second Lieutenant Brunelle performed adequately as a troop commander in support of training activities, spending significant time in the field in that capacity. Superior officers testified that Second Lieutenant Brunelle’s work is fine and that he thinks logically and make good decisions, exercising sound judgement. They have no hesitation to trust Second Lieutenant Brunelle with the safety of troops who in fact have improved under his command.

A troop sergeant major testified that Second Lieutenant Brunelle is a hands-on officer who actively contributes to the completion of any tasking and is especially effective in attending to the needs of the troops who trust him in return. The offence and its impact [ 12 ] To assess the acceptability of the joint submission, the Court has considered the objective seriousness of the offences as illustrated by the maximum punishment that can be imposed. Offences under

section 93 of the NDA for disgraceful conduct are punishable by imprisonment not exceeding five years or less punishment. On that basis, disgraceful conduct is a disciplinary offence of significant gravity. [ 13 ] The facts surrounding the commission of the offence in this case are disclosed in the Statement of Circumstances read by the prosecutor and formally admitted as accurate by Second Lieutenant Brunelle. These circumstances can be summarized as follows: (

a) On 1 November 2014, Second Lieutenant Brunelle was student on a BMOQ (Land) course at CFB Gagetown. He met with course mates at a pub in Fredericton that evening and consumed significant amounts of alcohol, which led him to behave in a loud and boisterous manner. (

b) J.L.P. was a colleague of Second Lieutenant Brunelle on the course. She had been kind and supportive to him during the course. She was known to her course mates to be married and was not romantically interested in anyone from the course. She had two drinks after arriving at the pub but ceased drinking early as she was the backup designated driver. She danced with course mates, including twice with Second Lieutenant Brunelle. After dancing together, Second Lieutenant Brunelle put his cheek against hers. J.L.P. also kissed Second Lieutenant Brunelle on the cheek at one point in view of other course mates.

Second Lieutenant Brunelle announced he would kiss J.L.P. hard on the mouth, and did so, uninvited, while they were sitting at the table. (

c) By the end of the groups’ time at the pub, in the early hours of 2 November 2014, Second Lieutenant Brunelle was very drunk. He went back to CFB Gagetown in a vehicle with course mates and continued to behave in an unruly fashion. Upon arrival at their accommodations at CFB Gagetown, Second Lieutenant Brunelle became upset as he had booked a room at a hotel in Fredericton and had not realized they were driving to Gagetown. With the assistance of J.L.P. and another course mate who was in the hallway of the accommodations block, a taxi was called to return him to Fredericton. (

d) J.L.P. waited in the foyer area with Second Lieutenant Brunelle to ensure he met the taxi. Second Lieutenant Brunelle asked J.L.P. to stand beside him, which she did. He had his arms around J.L.P’s waist and rested his head on her arm while they chatted. Suddenly and unexpectedly, Second Lieutenant Brunelle shoved both his hands down J.L.P.’s pants. (

e) J.L.P. reacted by pushing Second Lieutenant Brunelle. She then walked away, telling him “I’m done, get in the cab”. However, Second Lieutenant Brunelle followed J.L.P. down the hallway of the accommodation block, coming up from behind her and again putting his hands down her pants a second time. J.L.P. yelled to her course mates in nearby rooms, pulled away from Second Lieutenant Brunelle and ran down the hallway to her room.

(

f) Before J.L.P. was able to find the key to lock her room from the inside, Second Lieutenant Brunelle followed her into her room and put his hands down her pants again, for a third time. J.L.P. again pushed him away and yelled at him. Second Lieutenant Brunelle left her room. She immediately went to a course mate’s room nearby and was visibly upset. She reported the events to the course staff and to the military police in the following hours. [ 14 ] The Court was informed of the impact of the offence on the victim.

Being treated as she was by Second Lieutenant Brunelle shattered her idealistic views of service in the CAF as it pertains to camaraderie, community and colleagues standing beside one another, for one another. She remains afraid to trust colleagues and is anxious when having to attend social events as part of her military duties because she feels she could be hurt. She was placed in emotional turmoil following the incidents by having to report Second Lieutenant Brunelle to superiors and be interviewed on several occasions by investigators, which caused her to relive the unpleasant events of that night.

The views from the victim demonstrate how one’s disgraceful actions may have such a significant and sometimes unforeseen impact on persons affected. Aggravating Factors [ 15 ] The circumstances of the offence in this case are extremely serious as they have to be to sustain a charge of disgraceful conduct, punishable by imprisonment by up to five years. I do not accept any actual or perceived suggestion to the effect that the behavior admitted to by the offender is somehow akin to offences frequently committed by junior personnel getting intoxicated during breaks from stressful career courses.

Generally speaking, the circumstances of the offence of disgraceful conduct in this case reveal a repeated assault of a perverted nature on a colleague. It is personal, disrespectful and highly offensive. It cannot, in my view, be assimilated to incidents of drunken behavior too frequently tried before military tribunals. The acts of Second Lieutenant Brunelle invaded J.L.P.’s privacy in the most intrusive way, without any form of consent.

They cannot in any fashion be justified by the fact that J.L.P. had a few drinks early in the evening, that she danced with Second Lieutenant Brunelle on two occasions, that he was able to put his cheek against hers and received a kiss from her on the cheek or that she did not violently push him back when he kissed her hard on the mouth, uninvited, while they were sitting at the table. [ 16 ] Specifically aggravating are first, the fact that the sudden and unexpected disgraceful behaviour by Second Lieutenant Brunelle, in shoving his hands down J.L.P.’s pants, was repeated twice even after he was pushed away, and told to get in his cab.

As J.L.P. walked away, it should have been clear to him that his conduct was unacceptable. Yet he followed J.L.P. down the hallway and again placed his hands down her pants a second time as she yelled for help. After she had run away to her room, he followed her inside and placed his hands down her pants for a third time.

The repetitive nature of the conduct constitutes an aggravation of the already disgraceful conduct that was being perpetrated as particularized in the charge. [ 17 ] A second aggravating factor is that the offence constitutes an attack on a colleague in her quarters, a place where she and any person undergoing training away from home should be able to feel safe. [ 18 ] Finally, the behavior of Second Lieutenant Brunelle is a violation of the trust that colleagues in arm of the CAF should have for one another.

He violated the physical integrity of a fellow member of the military family, on base, in the context of a gathering of colleagues on a difficult course. As I found last month in the case of R. v. Chapman , 2016 CM 4019 , conduct that places the safety, security and health of fellow members at risk threatens the operational effectiveness of the CAF. Sure enough, there were impacts and very real consequences for a member of the CAF in this case as the victim is reluctant to participate fully in all that military life has to offer by virtue of her fear of being hurt again.

I certainly hope she will overcome these difficulties and be able to turn the page on this disturbing episode in her life. Mitigating factors [ 19 ] The Court also considered the arguments of counsel as to mitigating factors arising either from the circumstances of the offence or the offender in this case. However, I don’t accept some of the factors mentioned by both counsel. For instance, and with respect, I cannot accept as mitigating the fact that the offender had been a member of CAF for only seven months when the offence was committed.

He was charged and pleaded guilty to disgraceful conduct, an offence that sanctions behaviour which by its nature causes harm to individuals or society in a way that undermines a fundamental value to a degree that is incompatible with the proper functioning of society, including the CAF. I don’t see how a person needs any amount of time or experience in the service to recognize the impropriety of repeatedly placing one’s hands down a colleague’s pants, especially at the age of 34 as Second Lieutenant Brunelle was at the time.

[ 20 ] I also cannot accept that the publicity that is likely to result from the conduct of this trial constitutes a mitigating factor in the circumstances of this case. The offence was committed by a member of the CAF, on another member of the CAF right here on this base in the context of a military course. It was reported within hours to military authorities. In these circumstances, what other outcome than this trial is to be expected? Military authorities brought this matter to military prosecutors who requested that a court martial be convened, as provided by law.

This is a court, and, as any other court in a democratic country which promotes the rule of law, it sits in public. Spectators, military or civilians, are welcome to attend. So are journalists whose job it is to report within the limits of publication bans and other court orders as applicable. I cannot see how the entirely logical outcome would somehow constitute a factor mitigating punishment.

This is different from pre-trial publicity where a person may be significantly prejudiced without the opportunity of being heard by a court. [ 21 ] What I do accept as mitigating circumstances in this case however are the following: (

a) First and foremost, Second Lieutenant Brunelle’s guilty plea, which avoided the conduct of a trial, which I consider as a clear indication that the offender is taking full responsibility for his actions, in this public trial in the presence of members of the military community. He has also allowed the victim to have a voice at the sentencing hearing, thereby demonstrating his consideration to what she has had to go through as a result of his actions. (

b) Second, the fact that Second Lieutenant Brunelle has no criminal or disciplinary record and that his behaviour was out of character for him. I reach that conclusion on the basis of the Statement of Circumstances, which states that Second Lieutenant Brunelle was noted by his course mates to be acting on the evening of 1 November 2014 in a way that was out of character due to his state of intoxication. In addition, witnesses who have observed the performance of Second Lieutenant Brunelle since the incidents have testified that in their opinion, the disgraceful conduct he admitted to was out of character for him. (

c) Third, the time it took to bring this matter to trial. This is not a matter of laying blame on anyone but it remains that the complaint was made in the hours following the incident on 2 November 2014. A charge was initially preferred on 25 September 2015 and this trial commenced on 10 January 2017. All that time Second Lieutenant Brunelle had that matter hanging over his head with known effects on a promotion and consequential loss of potential income. (

d) Finally, Second Lieutenant Brunelle’s short but entirely satisfactory service with the CAF, despite the black cloud hanging over his head as a result of the potential disciplinary proceedings. His performance under these trying circumstances shows, according to witnesses, a strong potential for success and advancement in military service. In my view, it is also indicative of potential to make a positive contribution to Canadian society in the future.

Objectives of sentencing to be emphasized in this case [ 22 ] I agree with counsel that the circumstances of this case require that the focus be placed on the objectives of denunciation and general deterrence in sentencing the offender. At the same time, any sentence imposed should not compromise the rehabilitation of Second Lieutenant Brunelle, which has been underway for some time. Assessing the joint submission [ 23 ] There has been a lot of evidence heard and submissions made as to what would be an appropriate sentence to be imposed in this case.

Yet, the first thing I need to do in determining the appropriate sentence is to assess the joint submission and determine if it is acceptable. The prosecutor and defence counsel both recommended that this Court impose the punishments of a severe reprimand and a fine of 3000 dollars to meet justice requirements.

I may depart from the joint submission only if I consider that this proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest. [ 24 ] As a military judge, the issue for me to assess is not whether I like the sentence being jointly proposed or whether I would have come up with something better.

Indeed, the threshold for departing from joint submissions is very high and any opinion I might have on an appropriate sentence is not sufficient to reverse the joint submission that was made to me. [ 25 ] The Supreme Court has required such a high threshold as it is necessary to allow all of the benefits of joint submissions to be obtained. Prosecution and defence counsel are well placed to arrive at a joint submission that reflects the interests of both the public and

the accused. They are highly knowledgeable about the circumstances of the offender and the offences, as with the strengths and weaknesses of their respective positions. The prosecutor who proposes the sentence is in contact with the chain of command. He or she is aware of the needs of the military and civilian communities and is charged with representing the community’s interest in seeing that justice be done. Defence counsel is required to act in the accused’s best interests, including ensuring that the accused’s plea is voluntary and informed.

Both counsel are bound professionally and ethically not to mislead the court.

In short, they are entirely capable of arriving at resolutions that are fair and consistent with the public interest. [ 26 ] In determining whether a jointly proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest, I must ask myself whether, despite the public interest considerations that support imposing it, the joint submission is so markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a breakdown in the proper functioning of the military justice system.

Indeed, as any judge assessing a joint submission, I have to avoid rendering a decision that causes an informed and reasonable public, including members of the CAF, to lose confidence in the institution of the courts, including courts martial. [ 27 ] I do believe that a reasonable person aware of the circumstances of this case would expect that the offender, guilty of disgraceful conduct, would receive a sentence composed of punishments that both express disapprobation for the failure in discipline involved and have a personal impact on the offender.

A sentence composed of a severe reprimand and a fine is aligned with these expectations. Such a reasonable person would also know that the prosecution has agreed to the substitution of a charge of disgraceful conduct to a sexual assault charge as part of an agreement by the accused to plead guilty to that charge and avoid a trial and the testimony of a victim who stated she was thrown into emotional turmoil every time she had to relive the events when being interviewed by investigators.

In the circumstances, that reasonable person would not expect that the offender be punished as severely as if he had been found guilty of sexual assault after a full trial. [ 28 ] Considering all of these factors, as well as the circumstances of the offence and of the offender, the applicable sentencing principles and the aggravating and the mitigating factors mentioned previously, I am unable to conclude that the sentence jointly proposed by counsel would bring the administration of justice into disrepute or would otherwise be contrary to the public interest.

The Court must, therefore, accept it. [ 29 ] Under s. 145(2) of the NDA , the terms of payment of a fine are in the discretion of the service tribunal that imposes it. At the sentencing hearing, the prosecution did not object to the demand made by defence that the fine be payable by instalments of 300 dollars per month unless the offender is released from the CAF. Also, I did consider whether it is desirable to make a prohibition order as provided for at s. 147.1 of the NDA and sought input from counsel.

The prosecutor is of the view that the behaviour of the offender since the commission of the offence does not require that such a prohibition order be made to protect anyone. I agree with that assessment. [ 30 ] Second Lieutenant Brunelle, the circumstances of the charge you pleaded guilty to reveal a very troubling conduct and I hope that by now you realize the gravity of what you have done. That being said, I do accept that this episode reflects a huge mistake on your part. You have now paid your debt to the military justice system with respect to these events.

The upcoming decision as to your future career lies with other authorities but regardless of the outcome of that process, you will live with the consequences of your actions for some time. From your performance in the last two years, I trust you are well engaged in rehabilitation and have every reason to hope that you won’t reoffend. This is important as I believe that you can continue making a positive contribution to Canadian society in any capacity in the future.

FOR THESE REASONS, THE COURT: [ 31 ] SENTENCES you to a severe reprimand and a fine of 3000 dollars payable in 10 monthly instalments of 300 dollars, commencing no later than 1 February 2017. In the event you are released from the CAF for any reason before the fine is paid in full, then any outstanding unpaid balance will be due the day prior to your release. Counsel : The Director of Military Prosecutions as represented by Commander S.M. Archer and Lieutenant (Navy) T.N. Ticky Mr. D. Bright, BOYNECLARKE LLP, 99 Wyse Road, Suite 600, Dartmouth, Nova Scotia, Counsel for Second Lieutenant J.A. Brunelle