R v Crosman, 2013 CM 1010

COURT MARTIAL Citation: R v Crosman , 2013 CM 1010 Date: 20130823 Docket: 201362 Standing Court Martial Canadian Forces Base Edmonton Edmonton, Alberta, Canada Between: Her Majesty the Queen - and - Corporal J.J. Crosman, Offender Before: Colonel M. Dutil, C.M.J. REASONS FOR SENTENCE (Orally) INTRODUCTION [ 1 ] Corporal Crosman has pled guilty to three charges; namely, two counts of absence without leave, contrary to

section 90 of the National Defence Act ; and one count of drunkenness, contrary to

section 97 of the Act. On 13 May 2013, he had pled guilty to two charges; namely, absented himself without leave, contrary to

section 90 of the National Defence Act ; and failure to comply with a condition imposed under Division 3, contrary to

section 101.1 of the Act . Corporal Crosman admitted also during his first court martial that he had committed other service offences similar in character to those for which the court had entered and recorded his pleas of guilty and he requested that the court take them into consideration for sentencing purposes in accordance with

section 194 of the National Defence Act.

As the military judge presiding at the Standing Court Martial, I accepted to take those offences into account for the purposes of sentencing the offender and I endorsed the joint submission of counsel on sentence and finally I imposed the punishment of detention for a period of 25 days. [ 2 ] Shortly after serving his sentence, Corporal Crosman's behaviour did not improve and subsequent events led to the charges before this court martial that commenced its proceedings on 22 July 2013, where the court ordered that Corporal Crossman's mental condition be assessed for the purpose of determining whether he was unfit to stand trial and whether he suffered from a mental disorder

so as to exempt him from penal responsibility. This order was in place for a period not to exceed 30 days and the proceedings were adjourned until 22 August 2013, i.e., yesterday, pending the reception of a psychiatric report in compliance with the order. The report was completed and signed on 19 August 2013 by Dr. K. Ganapathy, Psychiatrist at the Alberta Hospital Edmonton, where Corporal Crosman has been held since 19 July 2013 under the Mental Health Act , (Revised Statues of Alberta, c. M-13 2000).

The circumstances surrounding the commission of the offences before the court today were captured in the Statement of Circumstances marked as exhibit 7. In a nutshell, it reveals that at 0730 hours on 14 June 2013, Corporal Crosman was at the Canadian Forces Base Edmonton Base Gym ("Base Gym"), his place of duty, as he was required to participate in a physical training session with other members of his platoon.

Corporal Crosman was under the influence of an intoxicating substance called "brain freeze potpourri." [ 3 ] On 25 June 2013, Master Warrant Officer Stoicescu contacted the military police to report that Corporal Crosman was observed to be in possession of a substance believed to be a synthetic marihuana. The substance was seized and sent to Health Canada for analysis.

Master Warrant Officer Stoicescu is Corporal Crosman's Company Sergeant-Major. [ 4 ] On 26 June 2013, Master Warrant Officer Stoicescu contacted the military police again to report that Corporal Crosman did not report for duty at 0730 hours, 26 June 2013, at 1 Service Battalion as he was required to do. At approximately 1320 hours, 26 June 2013, Master Warrant Officer Stoicescu performed a welfare check of Corporal Crosman's room which was located on the Base in Building 163, Barrack Room 325. During this welfare check, Corporal Crosman was observed to be in possession of drug paraphernalia.

Corporal Crosman was detained in custody on 26 June 2013 and subsequently released by a Custody Review Officer, on 27 June 2013. As part of his conditions of release, Corporal Crosman was required to report to the military police detachment located at Canadian Forces Base Edmonton, Alberta at 0930 hours on Saturday and Sunday. [ 5 ] At 0930 hours on Saturday, 29 June 2013, Corporal Crosman failed to report to the military police detachment. He was found in his room one hour later. He was subsequently arrested and detained for breach of conditions, contrary to

section 101.1 of the National Defence Act . At 1336 hours on 29 June 2013, Corporal Crosman was released from military police custody on further conditions by the Custody Review Officer, Major Parker. As part of his release conditions, Corporal Crosman was to report to the military police detachment at 2200 hours daily. At 2200 hours, on 30 June 2013, Corporal Crosman failed to report to the military police detachment at Canadian Forces Base Edmonton as he was required to do. An arrest warrant for failure to comply with conditions was obtained by the military police.

At 2235 hours, on 30 June 2013, the military police attended Corporal Crosman's Room. Corporal Crosman was arrested and detained on 30 June 2013. He was released by a Custody Review Officer on 1 July 2013. As part of his release conditions, Corporal Crosman was to report to the military police detachment at 0700 hours daily. Additionally, on 1 July 2013, Corporal Crosman's release conditions increased his area of confinement from Canadian Forces Base Edmonton to the city of Edmonton.

Corporal Crosman was evicted from his Room and moved to the city of Edmonton. [ 6 ] At 0700 hours, on 10 July 2013, Corporal Crosman failed to report to the military police detachment at Canadian Forces Base Edmonton as he was required to do pursuant to his conditions of release from 1 July 2013. He also failed to report for duty at 0730 hours at 1 Service Battalion. At 0809 hours, Corporal Crosman attended the military police detachment and was arrested and detained. At 1030 hours he was released by a Custody Review Officer.

As part of his release conditions, Corporal Crosman was to report to the military police detachment at 1330 hours on Saturday and Sunday. Corporal Crosman failed to report to the military police detachment at 1330 hours, on Sunday, 14 July 2013. The military police contacted Corporal Crosman by telephone and advised him to immediately report as required by his release conditions. Corporal Crosman stated it would take him several hours to get to Canadian Forces Base Edmonton as he wasn't feeling well.

Corporal Crosman also failed to attend his next reporting time to the military police detachment at 1830 hours, 14 July 2013. Corporal Crosman also failed to report to the military police detachment at 0700 hours on 15 July 2013 and he failed to attend 1 Service Battalion for work at 0730 hours on 15 July 2013. Another arrest warrant against Corporal Crosman was issued. [ 7 ] On 16 July 2013, Master Warrant Officer Bantock and Warrant Officer MacDonald, both members of 1 Service Battalion, were advised of Corporal Crosman's current address by two individuals who also belong to 1 Service Battalion.

These two individuals assisted Corporal Crosman in moving from his residence at Canadian Forces Base Edmonton to his new address in the city of Edmonton, Alberta. [ 8 ] Master Warrant Officer Bantock and Warrant Officer MacDonald arrived at Corporal Crosman's residence at approximately 1530 hours on 16 July 2013. The man who sublet a room to Corporal Crosman advised that Corporal Crosman had just left on his bicycle. Master Warrant Officer Bantock and Warrant Officer MacDonald were about to leave when Corporal Crosman arrived on his bike. He was dressed in civilian clothing. He asked if he had to go into work.

Master Warrant Officer Bantock informed him that he was absent without leave and was required to leave with them. Corporal Crosman was compliant but his superior was concerned that he did not understand as he appeared to be under the influence of some intoxicating substance. Corporal Crosman otherwise appeared to be in good health. Corporal Crosman changed into his uniform and was driven back to Canadian Forces Base Edmonton. At 1645 hours on 16 July 2013, Master Warrant Officer Bantock brought Corporal Crosman to the military police detachment where he was arrested and detained.

A Custody Review Officer later determined that it was necessary to retain Corporal Crosman in custody. On 19 July 2013, following a show cause hearing on Corporal Crosman, Military Judge d'Auteuil ordered that he be retained in custody. On the evening of 19 July 2013, Corporal Crosman was then transferred to Alberta Hospital and he is still there pursuant to the Mental Health Act, (Revised Statutes of Alberta c. M-13 2000). Corporal Crosman was transferred to Alberta Hospital after making suicidal threats. It is

believed that Corporal Crosman will remain at the Alberta Hospital for the next two to three weeks under the Mental Health Act . [ 9 ] In sentencing an offender under the Code of Service Discipline, 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 . The fundamental purpose of sentencing at court martial is to contribute to the respect of the law and the maintenance of military discipline by imposing punishments that meet one or more of the following objectives: (

a) protection of the public, including the Canadian Forces; (

b) the denunciation of the unlawful conduct; (

c) the deterrent effect of the punishment, not only on the offender, but also upon others who might be tempted to commit such offences; and (

d) finally, the reformation and rehabilitation of the offender. [ 10 ] The sentence must also take into consideration the following principles: it must be commensurate with the gravity of the offence, the previous character of the offender and his or her degree of responsibility; the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; a court must also respect the principle that an offender should not be deprived of liberty if less restrictive punishments may be appropriate in the circumstances; finally, the sentence should or will be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

However, the court must always act with restraint in determining a sentence by imposing such punishment or punishments that constitute the minimum necessary intervention to maintain discipline. [ 11 ] At the court martial held in Edmonton in May 2013, both counsel indicated that Corporal Crossman faced challenges related to confirmed mental health issues and addictions. As we now know, further to the thorough assessment made by Dr. Ganapathy, Corporal Crosman's mental health condition is very serious and contributed significantly to the commission of the offences before the court.

Counsel for the prosecution now recommends that Corporal Crosman be sentenced to detention for a period of 60 days. The prosecution suggests that the sentence must primarily promote the need for general deterrence, in particular with regard to substance abuse and serve the objective of rehabilitation as well. He submits that the offender should be incarcerated to ensure that he continues to take his medication and be in a secure environment, where he could be escorted out to attend appointments and not be left on his own.

The Defence suggests that detention is not necessary as Corporal Crossman has already served more that 30 days in pre-trial custody pending his trial both under the Mental Health Act and the order of the military judge on 19 July 2013. [ 12 ] During the sentencing hearing, the court heard several witnesses. Major Gribble, Commandant of the Canadian Forces Service Prison and Detention Barracks, in Edmonton gave an overview of the facility under his command as well as the regimes in place for those serving a punishment of detention or imprisonment.

He also described the services offered to inmates, including medical and support groups. Major Gribble spoke about his experience with Corporal Crosman, while he was serving a sentence of detention in May and June 2013. The court also heard the testimony of Master Warrant Officer Stoicescu, Corporal Crosman's current Company Sergeant Major at First Service Battalion. He described the working

schedule in place at the unit and he testified to the behaviour and problems of Corporal Crosman within the unit in recent years. Master Warrant Officer Stoicescu described the efforts of the unit as well as the impact on that unit that resulted from the conduct of Corporal Crosman. He stated that the behaviour of Corporal Crosman imposed a great strain on its personnel, who had to constantly look, watch and track him. [ 13 ] The testimony of Dr Ganapathy served to amplify his report filed before the court.

It indicates that Corporal Crosman suffers from serious mental illnesses, including bipolar affective disorder and severe depression with psychotic features that Corporal Crosman has tried to control in abusing intoxicant substances. The expert opinion reveals that his severe depression now seems to have responded well to treatment with Lithium and further increased in antidepressant Venlafaxine. Cpl Crosman has a comorbid substance dependence. [ 14 ] Dr Ganapathy and his colleagues observed Corporal Crosman during the last month.

He believes that the nature of the offender's illness is of relapsing and remitting in nature and that Corporal Crosman suffers from a very severe illness with a chronic high risk of attempting suicide either accidently or intentionally in the future. Dr. Ganapathy believes that Corporal Crosman is not suitable to continue with a military career and a move on to a civilian job in fact will help him significantly improve his mental state. It is also clear that the period of detention imposed on Corporal Crosman in May of 2013 had a significant impact on his mental condition. This view is

shared by Major Miksa, the base surgeon, who also testified. Major Miksa stated that Corporal Crosman requires a high level of care and that the level of severity of his mental condition is fairly unique. The base surgeon confessed that it is very difficult for his team to deal with such a case as they do not have in-patient capacity. Major Miksa testified that they have tried to assist Corporal Crosman with great patience and understanding but that he felt irritated with the process that has failed to expedite the release process of Corporal Crosman.

He offered his opinion that it is a spiral of events that led to the deterioration of Corporal Crosman's health as well as causing an administrative burden to the unit and to the justice process that, according to him, serves no purpose in the particular and unique circumstances of the Corporal Crosman. [ 15 ] The court disagrees with the prosecution with regard to the need to emphasize general deterrence in this case, in particular for the reasons expressed by counsel concerning the abuse of illicit substance by some members of the Canadian Forces in Edmonton.

Parenthetically, there is not a single charge dealing with the use of controlled substances or their possession in this case. Corporal Crosman can not be sentenced for offences that he has not been charged with and convicted. This case cannot serve to send a message to others with regard to the abuse and possession of illicit substances.

In addition, despite its numerous breaches of conditions, Corporal Crosman was charged with only one count for such an offence and that charge was withdrawn by the prosecution yesterday on the basis of the expert report to the effect that the mental capacity of Corporal Crosman contributed to some extent to the breach of conditions imposed on him.

The decision of the prosecution, I suggest, is fair, logical and commendable, but its approach on sentencing should be equally coherent. [ 16 ] It is now widely accepted that general deterrence should be given very little, if any, weight in a case where an offender suffers from mental disorder because such an offender is not an appropriate medium for making an example of others. Courts have recognized the decreased significance of general deterrence in sentencing the mentally ill offender, and they have also affirmed that specific deterrence and punishment ought to be given similarly reduced weight.

Moral culpability is often reduced in light of an offender's mental condition (See Sentencing , Eighth Edition, Ruby, Lexis Nexis Canada Inc. 2012 at paragraphs 5.267, 5.268, 5.272, 5.275). The court sees no rationale that would preclude a member of the Canadian Forces, who suffers from mental illness that contributed to the commission of services offences, including pure military offences, to be treated the same way and benefit of this widely accepted principle in Canadian courts.

As to the use of incarceration to rehabilitate the offender in the way described by the prosecution, I find that the unique circumstances of this case and the expert evidence provided do not support this submission. Incarceration in the form of detention or imprisonment should not be used to ensure the monitoring of an offender's mental health problems as the primary purpose, as opposed to provision of mental health services to an offender serving a sentence, where incarceration is warranted in and by itself.

Mental Health professionals should be responsible for the planning and the delivery of treatment. [ 17 ] In the circumstances of this case, which are pretty unique, I find that the aggravating factors are outweighed by the overwhelming evidence highlighting the impact of the mental illness of the offender in the commission of the offences. Corporal Crosman's demeanour in court and his answers to the questions asked by the court are indicative that his mental condition has significantly improved.

However, his psychiatrist emphasized that it is very fragile and that it will be a long recovery process that will take place in the civilian environment. Corporal Crosman is still a young man. He has proven before that he had a good potential when he was selected the battalion private of the year in 2009. The court believes that in these unique circumstances the rehabilitation aspect of the sentence must be carefully weighed. He has been in custody for a period in excess of 35 days, of which 32 were spent in hospital, until today.

It is important for him to see some light at the end of his tunnel and that he be allowed to have hope for the future. In pleading guilty before the court, he accepts responsibility and he will be sentenced accordingly. FOR THESE REASONS, THE COURT: [ 18 ] FINDS the offender, Corporal Crosman, guilty of the first charge under

section 97 of the National Defence Act ; guilty of the second charge under

section 90 of the National Defence Act ; and guilty of the fourth and only remaining charge under

section 90 of the National Defence Act. [ 19 ] SENTENCES the offender, Corporal Crosman, to reduction in rank to the rank of private. Counsel: Lieutenant-Commander S. Torani and Major R. Rooney, Canadian Military Prosecution Service Counsel for Her Majesty the Queen

Major D. Berntsen, Directorate of Defence Counsel Services Counsel for Corporal J.J. Crosman