R. v. Dahr, 2014 CM 1013

COURT MARTIAL Citation: R. v. Dahr, 2014 CM 1013 Date: 20140526 Docket: 201395 Standing Court Martial Brigadier-General J.C. Jefferson Armoury Edmonton, Alberta, Canada Between: Her Majesty the Queen - and - Private M.A. Dahr, Offender Before: Colonel M. Dutil, C.M.J. REASONS FOR SENTENCE (Orally) [ 1 ] Private Dahr has entered a plea of guilty to an offence under

section 86(

b) of the National Defence Act , for having made a provoking gesture towards a person subject to the Code of Service Discipline. [ 2 ] The facts of this case are straightforward. Private Dahr was attending a DP1 Infantry Course at the 3rd Canadian Division Training Centre, Wainwright in Alberta in July 2013. Private Dahr had completed the pre-requisite course at the same location at the end of June 2013 and was residing in barracks while undergoing training at the Training Centre.

On 16 July 2013, at approximately 2230 hours, Private Prud'homme, a course candidate attending the same course as Private Dahr, went to the washroom in the barracks to shave. The offender entered the washroom and seemed to be getting ready to have a shower. Private Prud'homme told Private Dahr that there was no time for a shower because the course candidates were required to personally hand in their rifle bolts five minutes later. The offender replied in a high voice that he wanted to shower now.

Private Prud'homme was amused at the tone of voice used by Private Dahr and asked him, jokingly, "What are you, a 12 year old girl?" Private Dahr took an aggressive attitude, moved closer to Private Prud'homme, took Private Prud'homme's razor from the counter, removed the safety cap and made motions with the razor close to Private Prud'homme's neck. Private Prud'homme felt threatened by the actions of Private Dahr with the razor. He tensed up and adopted a defensive posture. The offender then removed the razor from Private Prud'homme's neck and placed it on his own arm.

Private Prud'homme was then concerned that Private Dahr intended to cut his own arm with the razor, so Private Prud'homme quickly snatched the razor away from Private Dahr and tried to make light of the situation by treating it as a joke. Throughout this incident, Private Prud'homme felt that his safety was threatened by Private Dahr. The incident was reported to the course staff who contacted the

Wainwright Military Police. The offender was arrested, transported to the detachment and was held in custody overnight being released by a Custody Review Officer on conditions. Private Dahr was subsequently Returned to Unit and was not permitted to continue with the training or complete the course.

As a result, he has been unable to advance in the Army due to not having completed the Basic Infantryman qualification course, and upon completion of the court martial, the Loyal Edmonton Regiment plans to put forward Private Dahr's name for inclusion in the course to be conducted at the 3rd Canadian Division Training Centre at Camp Wainwright this summer. [ 3 ] Prosecution and defence have joined this morning and made a submission on sentence. They recommend that the Court impose a fine in the amount of $350.

They propose that the sentence would achieve the goals of denunciation, general deterrence, and I would also add that it would enhance the acceptance of responsibility by the offender. I agree with prosecution and defence on their joint submission. This sentence is within the range of sentences for first offenders at the lower end of the spectrum for this particular offence. Their sentence proposal does not cause concern in the administration of justice and it is not against public interest. [ 4 ] I agree with the prosecution that the following circumstances aggravate the sentence: (

a) The deliberate nature of the gesture toward Private Prud'homme, a colleague caused him to fear for his own safety, it was totally unwarranted and it has no place at all in the military; and (

b) As it was mentioned by Mr Prosecutor, it was done during training which in the context is somewhat difficult to understand when an incident of that nature occurs or takes place within less than four months after enrolment. [ 5 ] But there are significant mitigating factors: (

a) The guilty plea at the earliest opportunity, I think it is a sign of remorse and acceptance of responsibility this morning; (

b) The fact that the person has spent one day in pretrial custody is very significant in this case, and this is one of the reasons why I asked prosecution and defence to consider the quantum again, because knowing that incarceration would not have been part of the sentence or punishments considered in this case today. For that reason, I think it is very important to put the pretrial custody in proper perspective within the sentence this morning; (

c) Private Dahr, in his private life seem to be a very good worker and reliable. Also, the unit believes in him because he has continued to serve with that unit since the incident and there is certainly no other significant unfortunate event with him since the commission of the offence; (

d) He has no previous criminal record or disciplinary record; (

e) His career progression has been delayed significantly as a result of this incident; (

f) As to his young age, the Court considers that he is now 21 but he was 20 years old at the time of the offence; and (

g) As a last element, the Court considers mitigating the fact that this incident occurred four months after his enrolment, so I hope that with time he will learn to be more responsible. [ 6 ] In the context of those cases, it is not simply the amount of the fine that is important with regard to general deterrence or denunciation. Having to go through the process of a court martial for that kind of behaviour is by itself very significant, it is a very significant deterring factor and also that takes significant weight when the Court accepts or rejects a joint submission on sentence. So all those reasons explain why I have no difficulty in accepting your joint submission this morning.

FOR THESE REASONS, THE COURT: [ 7 ] FINDS you guilty of the first charge for the offence under

section 86(

b) of the National Defence Act , for making provoking gestures. AND [ 8 ] SENTENCES you to a find in the amount of $350. [ 9 ] The Court has considered whether to issue a weapons prohibition order under

section 147.1 of the National Defence Act , and based on counsel's submissions, I have concluded that I will not issue such an order. Counsel: Major R.J. Rooney and Lieutenant (

N) H.C. Monk, Canadian Military Prosecution Services, Counsel for Her Majesty the Queen Lieutenant-Commander D. Liang, Directorate of Defence Counsel Services, Counsel for Private M.A. Dahr