R. v. Cadieux, 2016 CM 4008

COURT MARTIAL Citation: R. v. Cadieux , 2016 CM 4008 Date: 20160621 Docket: 201575 General Court Martial Canadian Forces Base Petawawa Petawawa, Ontario, Canada Between: Her Majesty the Queen - and - Corporal S. Cadieux, Offender Before: Commander J.B.M. Pelletier, MJ REASONS FOR SENTENCE (Orally) Introduction [ 1 ] The panel of this General Court Martial returned a finding of guilty on the one charge laid against Corporal Cadieux under

section 127 of the National Defence Act ( NDA ) for having negligently omitted to do something in relation to a thing that may be dangerous to life, which omission caused bodily injury to some person. That finding reveals that Corporal Cadieux, while participating in a live fire night exercise at Canadian Forces Base (CFB) Petawawa on the evening of 10 September 2014, negligently fired his C-8 rifle, resulting in bodily injury to Corporal Trevor Vautour. Matters considered [ 2 ] It is now my duty as the military judge presiding at this General Court Martial to determine the sentence.

In so doing, I have to consider the principles of sentencing that apply in the ordinary courts of criminal jurisdiction in Canada and at courts martial. I must also consider the facts relevant to this case as disclosed in the course of the trial as required by the Queen’s Regulations and Orders for

the Canadian Forces (QR&O) 112.54. I have heard and considered the evidence submitted during the course of the sentencing hearing, composed of documents, including an Agreed Statement of Facts, as well as the testimony of Corporal Vautour and his wife on the effect that the offence had on them individually and as a family. I have also heard and considered the testimony of the offender, Corporal Cadieux. Finally, I have considered the submissions of counsel; prosecution and defence have submitted a joint recommendation for a sentence of detention for a period of 21 days.

Facts [ 3 ] The facts of this case are by large uncontested. In early September 2014, Corporal Cadieux is serving with the Canadian Special Operations Regiment (CSOR). He is informed that he is slated to deploy to Iraq on a very short, 12 hours’ notice to move with a small detachment of CSOR operators as part of the first rotation of Operation IMPACT.

A training plan is developed and, on 10 September, Corporal Cadieux is on a range exercise to perform a series of drills with his colleagues from his detachment, starting around noon and extending well into the evening under night-time conditions, using night vision goggles (NVGs). He performed pairs and

section live fire movements during the daytime, these drills constituting successive building blocks that culminated with the night’s live fire training. [ 4 ] The night drill involved the advance of a detachment composed of a four-person assault team, supported by a three-person firebase. The enemy was identified in the safety brief as being “sit” targets that would pop up at the direction of the staff. Every person on the range was using night vision goggles and had a laser mounted on their rifles.

The training participants were wearing two infrared glow sticks, one on each upper arm, to identify them as “friendly.” Members of the safety staff accompanying them were wearing a red glow stick on their helmets. The weather that night was not favourable as there was a low cloud cover, low illumination and rain, at times heavy, which witnesses qualified in varying ways, from a drizzle to a storm. [ 5 ] The detachment is led by Sergeant Bouchard, paired with Corporal Cadieux as Group 1 of the assault team.

The assault team sets off and soon encounters a first group of targets which are engaged with live ammunition, while the firebase provides supporting fire, mainly from a machine gun manned by Corporal Vautour. Every other participant is using a C-8 rifle. Shortly thereafter, the firebase is relocated so as not to conflict with the line of advance of the assault team.

After engaging a second group of “sit” targets, Sergeant Bouchard is told by a member of the directing staff that he is overwhelmed by enemy fire and has to withdraw his assault team. [ 6 ] In the course of withdrawing, Sergeant Bouchard and Corporal Cadieux became separated from the two other members of the assault team, who were struggling to progress in the bushes and trees. They lost sight of the firebase while Sergeant Bouchard moved quickly in the direction opposite from where he was previously heading with Corporal Cadieux covering him.

Immediately upon coming out of the vegetation in the open, Corporal Cadieux saw two white dots on his right, which he interpreted as being the lasers of the two other members of the assault team pointing at a “sit” target. He then rotated to his right, raised his weapon with laser on and fired two shots in that direction. It was immediately clear to the staff that Corporal Cadieux had shot in the direction of the firebase, then manned by three participants, with one member of the safety staff close by. It soon became clear for Corporal Cadieux himself that he had fired in the wrong direction.

The exercise was stopped. One of the two rounds fired by Corporal Cadieux had hit Corporal Vautour, who was then manning a machine gun as part of the firebase. [ 7 ] The prosecution’s theory was that, in firing his C-8 rifle at the firebase, Corporal Cadieux acted negligently, in committing a number of omissions, including a failure to maintain situational awareness of his surroundings and, most directly, in failing to positively identify what he was aiming at prior to pulling the trigger.

It is implied from the court martial panel’s finding of guilty that the conduct of Corporal Cadieux, in firing his C-8 rifle, constituted a marked departure from the conduct expected of a reasonable CSOR operator, in all of the circumstances. [ 8 ] The round fired by Corporal Cadieux hit Corporal Vautour through his right flank and exited anteriorly, causing damage to his right colon and small bowel. More tragically, it shattered his life. Corporal Vautour testified in a very matter-of-fact way about his treatments and the medical complications he suffered in the aftermath of the shooting.

Without a hint of a complaint, he described several ongoing physical and mental issues directly attributable to the injuries he suffered on the evening of 10 September 2014. These include, amongst other things, lower back pain, difficulty sitting for a long time, radiating pain down the left leg, abdominal pain and neurogenic bowel dysfunction.

He suffers from some subjective cognitive dysfunction and has ongoing abnormalities and deficits, and is unlikely to achieve a pre-injury level of comfort or function despite extensive physiotherapy. [ 9 ] Corporal Vautour also suffers from Post-Traumatic Stress Disorder related to the incident. Given his injuries, he is currently unable to deploy and there is a high likelihood that he will be assigned a permanent medical category which will require his medical release from the Canadian Armed Forces (CAF) at some point in the future.

[ 10 ] Captain Halawa, Corporal Vautour’s wife, also testified, mainly by means of a statement she prepared and read in court, describing how she was affected as the events unfolded and relating the impact of these events on her family. The requirement of dealing with the injuries, physical and psychological, that her husband suffers has had a profound impact on her, on their son and on her perception of her husband and their future prospects when he has to leave the service.

She still feels angry at how Corporal Cadieux could confuse her husband for a target and, in the process, cause so much pain to them. [ 11 ] Immediately following that testimony, in the presence of Corporal Vautour and his wife, Corporal Cadieux testified. He confirmed his counsel’s suggestion that it had been a stressful time awaiting trial for 21 months and being diagnosed with depression. However, he said he could not feel sorry for himself, as anything he has gone through is nothing compared to what Corporal Vautour and his family have experienced as a result of his negligence.

Searching for words to express his feelings, he said he is sorry and apologized. I do believe these apologies are sincere. [ 12 ] Clearly, the extremely unfortunate events of 10 September 2014 have had, and will continue to have, profound effects on the lives of the victims and on Corporal Cadieux, who will be burdened by the consequences of what he has done for the rest of his life. In the short term, I must impose a sentence that adequately addresses the wrongdoing committed and meets the applicable objectives of sentencing.

Purpose of the military justice system [ 13 ] The military justice system constitutes the ultimate means to enforce discipline in the Canadian Armed Forces, a fundamental element of the military activity. Its purpose is the promotion of good conduct by allowing the proper sanction of misconduct. It is through discipline that an armed force ensures that its members will accomplish successful missions in a trusting and reliable manner. In doing so, it also ensures that the public interest in promoting respect for the laws of Canada is served by punishment of persons subject to the Code of Service Discipline.

I stress that the notion of discipline applies to all aspects of the conduct of members of the military, including the application of precautions in the use of weapons which can cause significant injuries and destruction. Objectives of sentencing [ 14 ] In the context of sentencing an offender under the Code of Service Discipline, the Court Martial Appeal Court (CMAC) has expressly stated that a court martial should guide itself with the appropriate sentencing purposes, principles and objectives, including those enunciated in sections 718.1 and 718.2 of the Criminal Code of Canada .

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 Canadian Armed Forces and its members; (

b) to denounce unlawful conduct; (

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

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

e) to rehabilitate and reform offenders. [ 15 ] The prosecutor mentioned that in this case, the objectives of sentencing to be privileged should be denunciation, deterrence and rehabilitation. I agree. Principles applicable to sentences

[ 16 ] When imposing sentences, a sentencing judge must also take into consideration the following principles: (

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

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

c) a 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; and (

e) lastly, all sentences should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [ 17 ] That being said, punishment imposed by any tribunal, military or civilian, should constitute the minimum necessary intervention that is adequate in the particular circumstances.

For a court martial, this means imposing a sentence composed of the minimum punishment or combination of punishments necessary to maintain discipline. [ 18 ] The QR&O requires that the judge imposing a sentence at a court martial considers any indirect consequence of the finding or the sentence, and "impose a sentence commensurate with the gravity of the offence and the previous character of the offender." Therefore, any sentence imposed must be adapted to the individual offender and the offence he or she committed. The offender [ 19 ] First, the offender. Corporal Cadieux is 25 years old.

He joined the Regular Force in February 2009 and has served continuously since then. Following basic and occupational training as an infantryman, he was posted to Valcartier with the 1st Battalion of Royal 22e Régiment in January 2010. He deployed in November 2010 for seven months in Afghanistan. He successfully completed the Special Forces course in July 2013 and joined CSOR, with whom he has been deployed on two occasions, once before and once after the events of 10 September 2014. [ 20 ] Corporal Cadieux was described as a proficient and skilled Special Forces operator by witnesses at the trial.

Most importantly, Sergeant Bouchard, his detachment commander at the time of the offence, said that he would have deployed to Iraq with Corporal Cadieux despite the shooting incident as he had every confidence in his capacity to perform his duties in a safe and reliable manner. The platoon commander in charge of developing the training plan, who was trained on the same Special Forces course as Corporal Cadieux, testified that he supported the deployment of Corporal Cadieux to Iraq following the incident as he thought Corporal Cadieux had the right skill set for that mission.

That being said, Corporal Cadieux’s performances have not always met the expectations of his superiors, notably in terms of attitude and professional awareness. Not too long after the exercise where he shot at Corporal Vautour, Corporal Cadieux’s superiors became preoccupied with his shooting performance at night-time due to poor performance during another live fire exercise. [ 21 ] Corporal Cadieux has been transferred out of CSOR to the Joint Personal Support Unit last month as he is seeking professional help to deal with depression.

He is on a temporary medical category which prevents him from being deployed at this time. It is too early to tell how the care and support that Corporal Cadieux is currently obtaining will influence his future military career, as a member of CSOR or otherwise. The offence [ 22 ] In arriving at evaluating what would be a fair and appropriate sentence, the Court has considered the objective seriousness of

the offence as illustrated by the maximum punishment that the Court could impose. Offences under

section 127 of the NDA in which the offender has acted negligently, as opposed to wilfully, are punishable by imprisonment for less than two years or to less punishment. [ 23 ] The offence at

section 127 of the NDA sanctions negligent handling of dangerous things. The guidance added at Note (

A) to QR&O 103.59 captures the essence of the duty breached by the accused when he omitted to use his C-8 rifle in a safe manner on 10 September 2014. That note reads as follows: (

A) Section 127 of the National Defence Act is designed to provide suitably for offences in relation to modern materials of war which inherently are so dangerous that an extreme degree of care in their handling is required. Responsibility is not dependent upon whether the accused intended the actual consequences which his wrong-doing produced. [ 24 ] The offence underlines the importance of taking great care in handling things such as C-8 rifles considering their designed intent to cause injuries. The taking of such care protects other persons who could be injured and ultimately ensures operational effectiveness.

The important emphasis placed on training and operations in the safe handling of dangerous substances is also an important element of military discipline, which, although developed and encouraged through instruction, training and practice, must be internalized by each soldier, sailor and aviator as one of the fundamental prerequisites to operational effectiveness in any armed force. [ 25 ] The circumstances of the offence demonstrate to the court that the offender, for one moment, failed to apply his training which required him to positively identify a target before pulling the trigger on his weapon.

Given that he had lost situational awareness of the location of colleagues in the firebase, and in poor visibility which would call for taking extra care, this conduct was a marked departure from the conduct expected of a reasonable CSOR operator in all of the circumstances. Aggravating factors [ 26 ] The prosecution submitted that the court should consider the objective gravity of the offence, the specific training of the offender and the consequence of his conduct as an aggravating factor in this case.

In light of the fact that the effect of aggravating factors is to increase the sentence to be imposed, I believe that only the consequences of the conduct on victims can properly constitute an aggravating factor in this case. [ 27 ] Indeed, as mentioned previously, the maximum punishment that can be imposed for negligent conduct under

section 127 of the National Defence Act is imprisonment for less than two years. This is the less severe maximum punishment provided for in the Code of Service Discipline, with the exception of sections 130 and 132 which import the maximum punishment in other acts and with the exception of the offence of drunkenness committed by a non-commissioned member not on active service, not on duty nor warned for duty.

I fail to see how the commission of a military offence whose objective gravity is the lowest amongst all strictly military offences in the Code of Service Discipline can be said to constitute an aggravating factor. In any event, as I stated previously, the objective gravity of the offence is a neutral factor which provides the left and right arcs to a sentencing judge.

The practice I have seen of mentioning “objective gravity of the offence” as an aggravating factor is, in my respectful view, in error and should be revisited. [ 28 ] The Prosecution submits that the specific training of the offender as a special force operator should be considered as an aggravating factor. In the context of this case, I disagree.

I consider that it would be unfair to increase punishment on the basis of the membership of the offender in the group of persons on which his conduct was assessed in arriving at a finding of guilty. [ 29 ] Indeed, I alerted the panel as to the evidence that participation in the activity during which the offence was committed is limited to a select group of soldiers, especially those CSOR operators, whose special training allows participation in a live fire night exercise using live ammunition in a dynamic scenario with pop-up “sit” targets to be fired at in difficult weather conditions restricting visibility.

On that basis, the panel was instructed in law to consider that, in the circumstances of this case, the reasonable person against whom the conduct of Corporal Cadieux must be assessed is the CSOR operator in all of the circumstances of this case, as opposed to any soldier. The panel concluded that Corporal Cadieux's conduct constituted a marked departure from the conduct expected of a reasonable CSOR operator, in all of the circumstances.

It cannot be that membership in that group of CSOR operators has the additional effect of increasing the sentence to be imposed on him. [ 30 ] The situation would be different for negligence in the course of an activity that is common to all soldiers such as cleaning one’s personal weapon. In that scenario, the extensive experience of certain personnel with weapons may correctly be found to be aggravating.

Mitigating factors [ 31 ] The Court also considered a number of mitigating factors arising either from the circumstances relating to the offence or the offender in this case: (

a) The offender’s early recognition of the mistake he had made on the range on 10 September 2014, as voiced to his colleagues, including Corporal Vautour, shortly after the events. The evidence I heard reveals that the offender had shown genuine remorse early on and has since never tried to escape responsibility for the outcome of his actions, as evidenced by his testimony in sentencing, in this public trial, in the presence of several members of his unit. (

b) The offender’s collaboration with the investigator of the National Investigation Service to whom he spoke and admitted his mistake, less than two days after the events. The same collaboration was extended to the prosecution in this trial, with many admissions made to allow this General Court Martial to focus on one issue of genuine contention, namely, whether the mistake he made that evening constituted negligence, i.e., whether it rose to the degree of a marked departure for the standard of the reasonable person, in all of the circumstances. (

c) The time that it took to bring this matter to trial, during which an uncertain outcome hung over Corporal Cadieux’s head, as he continued to serve within CSOR in close proximity to victims and witnesses, and this, even if Corporal Cadieux refused to complain and produce specific evidence of prejudice. In the absence of evidence, the Court cannot reach any conclusion as to the link between the delay and the current condition of the offender who suffers from depression. However, it is difficult for the Court to understand why, with the evidence obtained from the offender less than 48 hours after the offence; it took almost 21 months to take this matter to trial. (

d) The fact that Corporal Cadieux has no conduct sheet. (

e) As explained by the prosecutor, the extensive effort invested in honing Corporal Cadieux’s skills which are on high demand and needed to accomplish the kind of missions expected of the Canadian Armed Forces by the government is mitigating. It is a factor that is relevant when a sentencing judge is in a position to decide between punishments which would end the military career of offenders and others which would instead keep the offender in the service. (

f) The fact that the negligent conduct of Corporal Cadieux occurred on one occasion and there is no evidence of a pattern of negligence that will have, on one occasion, generated injuries. (

g) Finally, it is appropriate to consider as mitigating both Corporal Cadieux’s past service with the Canadian Armed Forces for over seven years, including a number of deployments, and the fact that, at his young age and considering his talents and skills, he has the potential to continue making a positive contribution to the military and to Canadian society in the future. The joint submission of counsel and its effect [ 32 ] The prosecutor and defence counsel made a joint submission on the sentence to be imposed by the court.

They both recommended that this Court impose the punishment of detention for a period of 21 days in order to meet justice requirements. [ 33 ] Although this Court is not bound by this joint recommendation, it has been determined by the CMAC in R. v.

Taylor, 2008 CMAC 1 , at paragraph 21 , that the sentencing judge at a court martial cannot depart from a joint submission unless there are cogent reasons for doing so. “Cogent reasons” means where the sentence is unfit, unreasonable, would bring the administration of justice into disrepute or be contrary to the public interest. [ 34 ] As military judge, I may not like the sentence being jointly proposed, and I may think that I would have come up with something better. Yet, any such opinion is not sufficient to reverse the joint submission that was made to me.

The prosecutor who proposes the sentence is in contact with the chain of command and aware of the needs of the military and civilian communities. Defence

counsel is in a position to challenge the prosecutor’s case on the basis of facts and arguments favorable to the accused. Both counsel have an awareness of circumstances the court may not be privy to. Their opinions on the appropriate sentence are deserving of respect. [ 35 ] I do believe that a proposed punishment of detention is not unfit in the circumstances of this case.

Even if a custodial sentence should be a last resort, the negligence committed by the offender in relation to something as inherently dangerous as a weapon in the circumstances of this case demands a sentence that adequately denounces the conduct and deters others from neglecting their individual responsibility to ensure that weapons are used safely in every circumstance, be it on training or on operations. Considering the consequences of the offence on Corporal Vautour, his wife and family, I believe the proposed sentence is not disproportionate to the moral blameworthiness of the offender’s conduct.

Finally, I consider that a sentence of detention, over one of imprisonment, adequately takes into consideration the need for rehabilitation of the offender as a member of the Canadian Armed Forces, as illustrated in the mitigating factors mentioned earlier. [ 36 ] The prosecution presented the court with cases considered as useful precedents to illustrate punishments, mainly detention, that have been imposed for similar cases in the past, and to assist the court in its obligation to ensure that the proposed sentence is not unfit.

I do not see the need to go over these cases in detail in these reasons, except to say that they dealt with errors committed by military personnel in the manipulation of their weapons, causing rounds to discharge unexpectedly and injure others, a different conduct than the one attributed to Corporal Cadieux here. Even if the conduct was different, the results in terms of injuries are to an extent comparable to the injuries suffered in this case, injuries which I have considered as the only significant aggravating circumstance.

The cases show that the proposed sentence, especially the number of days of detention sought, corresponds to punishments imposed in the past for similar consequences. That is sufficient for me to conclude that the proposed sentence is not unfit. [ 37 ] Considering the nature of the offences, the circumstances in which they were committed, the applicable sentencing principles and the aggravating and the mitigating factors mentioned previously, I am of the view that the punishment, detention for 21 days, jointly proposed by counsel is within the range of appropriate sentences in this case.

The joint submission made by counsel is not contrary to the public interest and will not bring the administration of justice into disrepute. The Court will, therefore, accept it. [ 38 ] The prosecution is not seeking a weapons prohibition order under

section 147.1(1) of the National Defence Act . The Court has considered whether it is desirable to make such an order. I have decided against it given that in the circumstances of the offence and of the offender in this case, I do not believe that such an order is required in the interest of public safety. Further, the prosecution has not applied to the court for an order authorizing the taking of DNA samples under

section 196.14(3) of the NDA and the Court will, therefore, not make such an order. [ 39 ] Corporal Cadieux, the circumstances of the charge you were found guilty of reveal the tragic consequences of your failure to positively identify your target before pulling the trigger on 10 September 2014. I trust you will never forget those consequences on Corporal Vautour and his family. You should not. You have heard Corporal Vautour testify yesterday about his motivation to join the military and CSOR, namely to help others and become a soldier diplomat doing good in the world.

As a result of your actions, Corporal Vautour may have to use his considerable talents to help in other ways. You, however, can still contribute and pursue Corporal Vautour’s motivation to help and to do good. As far as I know, you still have the option to contribute as a member of Canada’s Special Forces. I believe, like no doubt others before me, that you have the potential to do so. Whether you will is up to you. The next three weeks at the detention barracks will offer an opportunity to reflect and start your rehabilitation.

Once out, I trust you will take care of yourself so that you can be in a position to move on with your life without reoffending. FOR THESE REASONS, THE COURT: [ 40 ] SENTENCES you to detention for a period of 21 days. Counsel: The Director of Military Prosecutions as represented by Major C. Walsh and Major D.G.J. Martin Major D. Hodson, Defence Counsel Services, Counsel for Corporal Cadieux