R. v. Miszczak, 2018 CM 3006

COURT MARTIAL Citation: R. v. Miszczak , 2018 CM 3006 Date: 20180313 Docket: 201748 Standing Court Martial John Foote Armoury Hamilton, Ontario, Canada Between: Her Majesty the Queen - and - Corporal B. Miszczak, Offender Before: Lieutenant-Colonel L.-V. d’Auteuil, M.J. NOTE: Personal data identifiers have been redacted in accordance with the Canadian Judicial Council’s “ Use of Personal Information in Judgments and Recommended Protocol ”. REASONS FOR SENTENCE (Orally) [ 1 ] Corporal Miszczak pleaded guilty to the second charge, which reads as follows: SECOND CHARGE

Section 129 NDA CONDUCT TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE Particulars : In that he, on or about 22 February 2016, at or near 4 th Canadian Division Training Centre, Meaford, Ontario, shared an intimate image of SD, a fellow service member, without her knowledge or consent.

[ 2 ] The Court, having accepted and recorded a plea of guilty in respect of that charge, now finds you guilty of it. Concerning the first charge, because the prosecutor decided to present no evidence on it, then the Court found you not guilty of the first charge. [ 3 ] In this case, both the prosecutor and the offender’s defence counsel made a joint submission on the sentence to be imposed by this Court.

They recommended that this Court sentences you to a reduction in rank to private. [ 4 ] 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 the 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. [ 5 ] The circumstances surrounding the offence were explained through the Statement of Circumstances, and your personal circumstances were also put to this Court through the Agreed Statement of Facts. Both documents read as follows: “STATEMENT OF CIRCUMSTANCES 1.

At all material times XXX XXX XXX Corporal Miszczak was a member of the Argyll and Sutherland Highlanders of Canada (ASH of C), Reserve Force, Canadian Armed Forces, and was serving on Class C Service as a member of Operation Provision at the 4th Canadian Division Training Center, Meaford, Ontario. 2. In December 2015, all members of the ASH of C including Corporal Miszczak, were provided with an Operation Honour briefing by the ASH of C Chain of Command.

Operation Honour is the CDS Op Order which was initiated in August of 2015 in response to the Deschamps Report which indicated the existence of an underlying sexualized culture in the Canadian Armed Forces. 3. Between January 2016 and February 2016 Corporal S.D was in an intimate personal relationship with Corporal V. Corporal V was serving as a reservist with the ASH of C while Corporal S.D was serving with another Army Reserve unit in Ontario. 4. During the course of their relationship, Corporal S.D. had occasionally sent intimate images to Cpl. V by electronic message through social media.

These images were sent by Corporal S.D with the expectation that they would not be shared with others and would remain private between herself and Corporal V. 5. In early January 2016, Corporal V. was browsing through the images on his cell phone in the presence of Corporal Miszczak. It was during this time that Corporal Miszczak inadvertently noticed a nude picture of Corporal S.D. on the phone of Corporal. V. Corporal V confirmed that the picture was that of Corporal S.D, however, he refused to show the picture to Corporal Miszczak when requested to do so. 6.

In early February 2016, a number of reservists from the Regiments of Corporal S.D, and the ASH of C volunteered for Class C service in support of Operation Provision, the Canadian Armed Forces mission to support the Government of Canada initiative to assist refugees from the conflict in Syria. 7. On 22 Feb 2016, while deployed on Operation Provision, Corporal Miszczak informed some of the other members of the exercise that Corporal V. had a nude picture of Cpl S.D. on his phone. 8.

After receiving pressure from a number of members of the exercise to produce the photo, Corporal V. eventually relented accompanied a number of male members to one of barracks rooms. Corporal V. proceeded to show the group of between 5 and 7 members, including Corporal Miszczak, an intimate image of Corporal S.D. which he displayed on his cell phone. 9. The image depicted Corporal S.D. nude on a bed, with her breasts exposed and her face clearly visible.

10. While Corporal V was displaying the photo to the group of males, Corporal Miszczak reached over the shoulder of Corporal V. and used his cell phone camera to take a picture of the intimate image of Corporal S.D. At no time did Corporal V consent to this reproduction of the image of Corporal S.D. 11. Shortly after obtaining the image of Corporal S.D., the word about this picture spread quickly and Corporal Miszczak voluntarily and without the consent or knowledge of Corporal S.D., transmitted the image to others using the Snapchat text application on his phone. 12.

On 22 February 2016, upon obtaining a copy of the photograph, Corporal Day, a member of the same regiment as Corporal S.D, reported the incident to his Chain of Command. 13. Within approximately 30 minutes of the Chain of Command being informed of the incident involving the images of Corporal S.D. being distributed, Sergeants from both Regiments, formed up all members of their respective platoons, underscored the inappropriateness of this action, and ordered that all members cease and desist the transmission of the image and destroy and delete all copies in their possession. 14.

On, 26 Feb 16, Lieutenant McKnight notified Corporal S.D. about what had transpired regarding her image, and accompanied her to 2 MP Regt Detachment, Meaford to file a complaint. 15. Corporal S.D. was extremely distraught when she discovered that her image had been distributed without her consent to her fellow co-workers and indicated her desire to see disciplinary actions pursued. 16. Corporal Miszczak was interviewed under caution by Military Police on 3 May 16 and acknowledged responsibly for his actions and fully co-operated with investigators.

On 6 March 2017, charges were referred to the Director of Military Prosecutions who preferred two charges against Corporal Miszczak on 20 July 2017.” [ 6 ] The Agreed Statement of Facts reads as follows: “AGREED STATEMENT OF FACTS 1. A short time after using his own cell phone to photograph the intimate image on Corporal V’s cellphone, Corporal Miszczak realized that his actions had been inappropriate and deleted the image from his own cellphone. During the ensuing Military Police investigation, Corporal Miszczak co-operated fully, including giving a self-incriminating statement admitting to the offence. 2.

Corporal Miszczak is currently employed full-time as a machine operator. Approximately eight months ago, Corporal Miszczak was forced to move out of his apartment due to a change in ownership resulting in the new landlord wishing to occupy the premises. Since that time, Corporal Miszczak has been staying at various friends’ homes while attempting to secure new accommodation. There have been a number of deaths and illnesses in his circle of family and friends in the past year. In addition, he was in a 4 year long relationship that ended three months ago. 3. Corporal Miszczak is of First Nations heritage.

As no custodial sentence is being sought, a Gladue report has not been prepared. 4. Corporal Miszczak has been served with a notification of intent to place him on Counselling and Probation as a result of this incident. Additionally, and in accordance with Chief of Defence Staff direction, upon conviction, Corporal Miszczak will be served with a notification of intent to recommend release from the Canadian Armed Forces.

5. Disciplinary measures were taken against Corporal V. for displaying the image of S.D. to his co-workers without her consent and was convicted at

summary trial of one charge contrary to

section 129 of the NDA and sentenced to a reduction in rank. After a period of six months, his rank was restored by the chain of command. Disciplinary action was also taken against two Master Corporals who had requested that Corporal V. show them the image of Corporal S.D. Both members were convicted at

Summary Trial for their actions. 6. The CDS Published an

Article in the Canadian Military Journal in 2016 which further amplifies the foundational principles of Operation Honor. The “Soldier Card” which was distributed to soldiers who received the Operation Honour briefing and the CDS

Article is attached at Annex A.” [Annex A omitted.] [ 7 ] Although the court is not bound by the joint recommendation made by counsel, it is generally accepted that the sentencing judge should depart from the joint submission only when it is contrary to the public interest, as stated by the Supreme Court of Canada in R. v. Anthony-Cook , 2016 SCC 43 , at paragraph 32 . [ 8 ] The only situation where the court would depart from the recommendation is where the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system.

This approach relies heavily on the work of the prosecution, as representing the community’s interest, which would include CAF members and the chain of command at the unit of the offender, and also on the defence counsel, as acting in the accused’s best interests. [ 9 ] As mentioned previously by the prosecutor, it is the duty of counsel to provide the court with the full circumstances in relation to the offender and the circumstances surrounding the commission of the offence, and it must be done without the judge presiding at the trial requesting the information.

In the actual context of this court martial, the court is satisfied that the information necessary for its understanding was provided in full. [ 10 ] In this case, objectives related to the denunciation and the deterrence of the offender and also general deterrence were used to frame the discussions amongst counsel. Rehabilitation has also been considered. [ 11 ] Corporal Mizczak enrolled in 2013 with the Reserve Force component.

He has had a normal progression as any soldier within a Reserve unit, up to the incident that brought him before this Court today, where he was careless about an action of taking a picture. Use of technology has created a challenge in relation to privacy in our society. While it is useful, some other times it is dangerous. Dignity and respect are fundamental principles of our society and entrenched in our Constitution. The CAF does not have any reason to be an exception to these principles.

As such, the Department of National Defence and Canadian Forces Code of Values and Ethics clearly reflects and states that respect is fundamental for the CAF. As illustrated by this case, it does not take much to create situations of humiliation, harassment and psychological violence.

People, including CAF members, must follow those principles at all times in order, as mentioned by the prosecutor, to provide a safe working environment to all members. [ 12 ] I do understand by your plea of guilty today you recognize your responsibility in this matter, and you also recognized shortly after you took that picture and distributed it that it was contrary to those values of dignity and respect of somebody else. I do understand that today will be the end of this process, but also it could be the beginning of another.

People here, if they were unaware, are now aware that it doesn’t take much to create a situation that may put people, especially fellow members, in an awkward situation where their respect and dignity may be challenged. I hope that it will be just a lesson, but I understand also that your future is not under your control any more.

We will see what will happen, but I just want to acknowledge the fact that you recognize your responsibility, which is a good starting, and I’m confident that you will continue with this now. [ 13 ] So I will accept the joint submission suggested by counsel on sentence because it is not against the public interest and it does not bring the administration of justice into disrepute. So I will accept this joint recommendation to sentence you to a reduction in rank to private.

FOR THESE REASONS, THE COURT : [ 14 ] FINDS Corporal Miszczak not guilty of the first charge of making available an intimate image without consent.

[ 15 ] FINDS Corporal Miszczak guilty of the second charge of conduct to the prejudice of good order and discipline. [ 16 ] SENTENCES Corporal Miszczak to reduction in rank to the rank of private. Counsel: The Director of Military Prosecutions as represented by Major C. Walsh Major A. Bolik, Defence Counsel Services, Counsel for Corporal B. Miszczak