R v Masserey, 2012 CM 3004

COURT MARTIAL Citation: R v Masserey, 2012 CM 3004 Date: 20120216 Docket: 201110 Standing Court Martial Canadian Forces Base Wainwright Denwood, Alberta, Canada Between: Her Majesty the Queen - and - Ex-Private M.R. Masserey, Offender Before: Lieutenant-Colonel L.-V. d'Auteuil, M.J. REASONS FOR SENTENCE (Orally) [1] Ex-Private Masserey, having accepted and recorded a plea of guilty in respect of the seventh and eighth charge on the chargesheet, the court now finds you guilty of these charges.

Considering that charges one to six were withdrawn by the prosecution at thebeginning of this trial, then the court has no other charge to deal with. It is now my duty as the military judge who is presiding at thisStanding Court Martial to determine the sentence. [2] The military justice system constitutes the ultimate means to enforce discipline in the Canadian Forces which is afundamental element of the military activity. The purpose of this system is to prevent misconduct, or in a more positive way, see thepromotion of good conduct.

It is through discipline that an armed force ensures that its members will accomplish in a trusting reliablemanner successful missions.

It also ensures that public order is maintained and that those who are subject to the Code of ServiceDiscipline are punished in the same way as any other person living in Canada. [3] It has long been recognized that the purpose of a separate system of military justice or tribunal is to allow the Armed Forcesto deal with matters that pertain to the respect of the Code of Service Discipline and the maintenance of efficiency and the morale amongthe Canadian Forces, (R v Généreux (SCC), [1992] 1 SCR 259 at 293).

That being said, the punishment imposed byany tribunal, military or civilian, should constitute the minimum necessary intervention that is adequate in the particular circumstances.

[ 4 ] Here, in this case, the prosecutor and the offender's defence counsel made a joint submission on sentence to be imposed by the court. They recommended that this court sentence you to imprisonment for a term of 30 days in order to meet the justice requirements. In addition, your counsel also suggested that the court suspend the sentence of imprisonment. Although this court is not bound by this joint recommendation, it is generally accepted that the sentencing judge should depart from the joint submission only when there are cogent reasons for doing so.

Cogent reasons mean where the sentence is unfit, unreasonable, would bring the administration of justice into disrepute, or be contrary to the public interest (see R v Taylor , 2008 CMAC 1 at para 21 ). [ 5 ] Imposing a sentence is the most difficult task for a judge.

As the Supreme Court of Canada recognized in Généreux at page 293 in order "to maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently." It emphasized that, in the particular context of military justice, "breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct." However, the law does not allow a military court to impose a sentence that would be beyond what is required in the circumstances of a case.

In other words, any sentence imposed by a court must be adapted to the individual offender and constitute the minimum necessary intervention, since moderation is the bedrock principle of the modern theory of sentencing in Canada. [ 6 ] 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 Forces; 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. [ 7 ] When imposing sentences, a military court 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 in the circumstances.

In short, the court should impose a sentence of imprisonment or detention only as a last resort, as it was established by the Court Martial Appeal Court and the Supreme Court of Canada decisions; 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. [ 8 ] I came to the conclusion that in the circumstances of this case, sentencing should place the focus on the objectives of denunciation and general deterrence.

[9] Here, the court is dealing with the military offence of trafficking in Stanozolol in 2009 and for possessing cocaine in April2010. The Court Martial Appeal Court articulated clear reasons why the involvement of drugs in a military environment must be treatedas a very serious matter.

In 1985, in its decision of R v MacEachern, (1986) (CMAC), 24 CCC (3d) 439 at page 444,the court said: Because of the particularly important and perilous tasks which the military may at any time, on short notice, be called upon to performand because of the team work required in carrying out those tasks, which frequently involve the employment of highly technical andpotentially dangerous instruments and weapons, there can be no doubt that military authorities are fully justified in attaching very greatimportance to the total elimination of the presence of and the use of any drugs in all military establishments or formations and aboard allnaval vessels or aircraft.

Their concern and interest in seeing that no member of the forces uses or distributes drugs and in ultimatelyeliminating their use may be more pressing than that of civilian authorities. [10] Essentially, the Court Martial Appeal Court has told us that trafficking in drugs in the military is a serious offence and thiscourt totally agrees with this affirmation. (See R v Lee 2010 CMAC 5 at paragraph 26.) [11] Further to a search warrant executed on 9 December 2009, the military police seized two 50-milligram vials of Stanozolol inthe room occupied by Private Welch.

During the interview of the latter, it was found out that he purchased them through PrivateMasserey in October 2009. Also, further to information provided by a confidential informant, the military police investigators arrestedon 8 April 2010 a Canadian Forces member and Private Masserey in his car parked outside Building 626 on Canadian Forces BaseWainwright. Further to a search of the vehicle, cocaine and some other substances were found in the car.

On the day after, PrivateMasserey admitted during his interview by the police investigator that the two baggies of powdered cocaine found in his car were for hispersonal use. He also confirmed during that same interview that he purchased Stanozolol for Private Welch in October 2009. [12] In arriving at what the court considers a fair and appropriate sentence, the court has considered the following mitigating andaggravating factors: a. The court considers as aggravating the objective seriousness of the offences. The offences you were charged with were laidin accordance with

section 130 of the National Defence Act for trafficking in a drug contrary to subsection 5(1) of the Controlled Drugsand Substances Act and for possessing a drug contrary to subsection 4(1) of the Controlled Drugs and Substances Act. These types ofoffence are punishable by imprisonment for a term not exceeding three years or to less punishment for trafficking substances included inSchedule IV and by imprisonment for a term not exceeding seven years or to less punishment for possessing substances included inSchedule I. b.

Secondly, the subjective seriousness of the offences; that, for the court, covers four aspects: i. The first aggravating factor from a subjective perspective is the lack of integrity youdisclosed by your actions toward your superiors, your peers and yourself. You continually put in jeopardy your capacity and ability tocarry out your tasks at any time and on short notice because of your drug use and through the example you provided to other members ofthe military in your complete disrespect of the zero tolerance policy regarding drug use by members of the Canadian Forces.

Youdemonstrated completely unacceptable behaviour on that very serious subject. ii. The second aggravating factor is the premeditation attached to those circumstances. Whatyou did was entirely planned out and is not the result of a decision made on the spur of the moment without having been thought outbeforehand. You clearly decided to help somebody to shop for and get Stanozolol, and you kept it with your cocaine knowingly, as youadmitted to the investigator for your own needs. iii.

In addition, the court considers to be aggravating the fact that the offences were committedon and near Canadian Forces Base Wainwright, a defence establishment. iv. Finally, your conduct sheet. Despite the fact that matters appearing on it are not related to theoffences for which you are before this court today, it discloses offences that occurred during the same period of time concerning theincidents for which charges before this court were laid against you.

Clearly, the court understands that at that time, the respect and thededication you were supposed to show as a soldier started to be affected and it demonstrates the disregard you started to have toward

discipline. [13] There are also mitigating factors that I have considered: a. First, there is your guilty plea. Through the facts presented to this court, the court must consider your guilty plea as a clear,genuine sign of remorse and that you are very sincere in your pursuit of staying a valid asset to the Canadian Forces and it also disclosesthe fact that you are taking full responsibility for what you did. b. Your cooperative attitude since the time of your arrest for this matter must also be considered as a serious mitigating factor. c.

Your age and your career potential as a member of the Canadian community; being 24 years old, you have many yearsahead to contribute positively to the Canadian society. d. The fact that you had to face this court martial, which was announced and accessible to the public and which took place inthe presence of some of your peers, has no doubt had a very significant deterrent effect on you and on them. It sends the message toothers that the kind of conduct you displayed regarding drugs will not be tolerated in any way and will be dealt with accordingly. e.

The fact that you were released very quickly from the Canadian Forces prior to the laying of any charge and in connectionwith this specific incident. This decision by the chain of command may have been totally appropriate and the court does not question atall those reasons, but it constitutes a fact that caused serious consequences to you that the court must take into account. f. The delay in handling this matter.

The court does not want to blame anybody in this case, but the quicker a seriousdisciplinary matter is dealt with, the more relevant and effective the punishment is with respect to objectives considered by the court andthe effect on the morale and cohesion of the unit's members.

The time elapsed since the incidents occurred is one of the factors makingit less relevant to give consideration to a more severe punishment with some deterrent effect. [14] Concerning the fact for this court to impose a sentence of incarceration to Private Masserey, it has been well established bythe Supreme Court of Canada decision in Gladue, (SCC), [1999] 1 SCR 688, at paragraphs 38 and 40 that incarcerationshould be used as a sanction of last resort.

The Supreme Court of Canada specified that incarceration under the form of imprisonment isadequate only when any other sanction or combination of sanctions is not appropriate for the offence and the offender. This court is ofthe opinion that those principles are relevant in a military justice context, taking in account the main differences between the regimes forpunishments imposed by a civilian tribunal sitting in criminal matters and the one set up in the National Defence Act for a servicetribunal.

This approach was confirmed by the Court Martial Appeal Court in Baptista, 2006 CMAC 1 at paragraphs 5 and 6, where thecourt also said that incarceration should be imposed as a last resort. [15] The Court Martial Appeal Court also clearly stated in its decision of R v Dominie, 2002 CMAC 8 at paragraph 5 andreaffirmed in R v Taylor, 2008 CMAC 1 at paragraph 27 that imprisonment may constitute the minimum necessary punishment formilitary members involved in the traffic of cocaine.

In Dominie, the CMAC said: Trafficking in crack cocaine on numerous occasions, even though it is non-commercial in nature, generally requires the imposition ofactual imprisonment even for civilian offenders. In respect of military offenders, general deterrence requires that the military know thatthey will be imprisoned if they deal in crack cocaine on military bases.

Suspended sentence simply is not available, except in the rarecase of extremely mitigating circumstances. [16] Here in this case, considering the nature of the offences, which are criminal offences per se, the circumstances they werecommitted, the applicable sentencing principles, the aggravating and the mitigating factors mentioned above, I conclude that there is noother sanction or combinations of sanctions other than incarceration that would appear as an appropriate punishment in this case.

On thatissue, the court notes the agreement of both counsel. [17] Now, what would be the appropriate type of incarceration in the circumstances of this case? The military justice system hasdisciplinary tools such as detention, which seeks to rehabilitate service detainees and re-instil in them the habit of obedience in a militaryframework organized around the values and skills unique to members of the Canadian Forces.

However, in the case of a member of theCanadian Forces who has already been released, the objectives of a sentence of detention are no longer relevant and the remaining formof incarceration specified in the scale of punishments, which is imprisonment, must be considered. In addition, when the act as chargedgoes beyond the disciplinary framework and constitutes a strictly criminal activity, it is necessary to examine the offence, not only in

light of the particular values and skills of members of the Canadian Forces but also from the perspective of the exercise of concurrent criminal jurisdiction. [ 18 ] It seems clear to this court that incarceration in the form of imprisonment is the only appropriate sanction and that there is no other sanction or combination of sanctions that is appropriate for the offences and the offender.

Therefore, the court considers that a sentence of imprisonment is necessary to protect the public and maintain discipline. [ 19 ] The question now is what the duration of such a sentence of imprisonment should be to protect the public and maintain discipline. It was jointly suggested by both counsel to sentence you to imprisonment for a period of 30 days.

Considering the nature of the offences, the applicable sentencing principles, including sentences imposed on similar offenders for similar offences committed in similar circumstances by military and civil tribunals, the aggravating and mitigating factors mentioned above, I conclude that imprisonment for a period of 30 days would appear as the appropriate and necessary minimum punishment in this case. [ 20 ] In addition, this punishment will remain on your conduct sheet unless you get a pardon for the criminal record you are getting today.

The reality is that your conviction will carry out a consequence that is often overlooked, which is that you will now have a criminal record, and it is not insignificant. [ 21 ] The defence counsel suggested to the court that it suspend the sentence of 30 days' imprisonment by means of its power under

section 215 of the National Defence Act because it is warranted on account of the exceptional circumstances of the offender allegedly demonstrated in this case.

Section 215 of the National Defence Act reads as follows: Where an offender has been sentenced to imprisonment or detention, the carrying into effect of the punishment may be suspended by the service tribunal that imposed the punishment. [ 22 ] This

section is in Division 8 of the Code of Service Discipline in the National Defence Act , which contains the provisions applicable to imprisonment and detention. The suspension of a punishment of imprisonment is a discretionary and exceptional power that may be exercised by a service tribunal, including a court martial. This power is different from the power provided by

section 731 of the Criminal Code , which allows a civilian court of criminal jurisdiction to suspend the passing of a sentence while subjecting an offender to a probation order, or the power provided by

section 742.1 of the Criminal Code , on imprisonment, with conditional sentencing, which allows a civilian court of criminal jurisdiction to sentence an offender to serve a punishment of imprisonment in the community. [ 23 ] The National Defence Act does not contain any particular criteria for the application of

section 215. To this day, the courts martial's'

interpretation of its application is quite clear and has been established by various military judges in other cases. (See R. v. Constantin , 2008 CM 29 ; R. v. Labrie , 2008 CM 1013 ; R. v. Bryson , 2008 CM 1002 ; and R. v. Tardif , 2008 CM 3010 .) Essentially, if the offender demonstrates on a balance of probabilities that his particular circumstances or the operational requirements of the Canadian Forces justify the necessity of suspending the sentence of imprisonment or detention, the court will make such an order.

However, before doing so, the court must consider once it has found that such an order is appropriate, whether or not the suspension of that sentence would undermine the public trust in the military justice system as part of the Canadian justice system in general. If the court finds that it would not, the court will make the order. [ 24 ] The offender has demonstrated to the court through the testimony of his fiancée and his own testimony that it is during his passage in the military world that he has developed an addiction to cocaine.

It is true that prior to joining the military he was already using steroids, but the fact that he continued to use it for himself was not really a concern. What is the real issue here is about trafficking in steroids, which is basically providing it to a fellow soldier. However, the offender demonstrated that kind of trafficking was social in nature because he was not trying to make any money off it. His quick release from the Canadian Forces was a clear message from the military authorities that such conduct would not be tolerated.

Further to his release, he took some time to figure what he would do with his life. When he left the Forces, he has abstained from drugs such as Ecstasy and cocaine and he never took any since then. He told the court that he has used sporadically alcohol and low-dose steroids for pain, which was confirmed to be of no concern by an addictions counsellor he met recently. [ 25 ] Basically, once he was released, he took control over his addiction with drugs and he decided to go on with his life.

He managed to get a stable and supportive environment that has helped him to stay away from any problems and he is engaged to be married in June 2011 with his current fiancée and they live together in Ardmore, a small community, since then.

[ 26 ] During the fall of 2011, he met with a consultant psychiatrist who recommended that he get a referral to a chronic pain clinic for optimization of medical and non-medical treatments. In December 2011, he met with a mental health therapist who also recommended an addiction assessment and a referral to a chronic pain clinic. It has been established before this court that all efforts are being made to get an appointment with a chronic pain clinic and that he is waiting for it now.

The court gets from those facts that he is seeking other ways than steroids in order to control the pain he has experienced further to his motorcycle accident some years ago.

Also he is enrolled in a power engineering course that would help him to get a job soon, probably sometime this year. [ 27 ] All those circumstances were put to the court by the offender to demonstrate that since his arrest for the incident which is now before this court martial and his quick release from the Canadian Forces, things have changed for him and he has tried during those last 20 months to get on with his life and to make it better for him and for the Canadian society. [ 28 ] It is my opinion that by putting all those facts together, the offender has demonstrated on a balance of probabilities that these particular circumstances justify the necessity of suspending the sentence of imprisonment by the court. [ 29 ] Now, would the suspension of that sentence undermine the public trust in the military justice system as part of the Canadian justice system in general?

The offence is serious here, but not as serious as the one in R v Paradis where sexual abuse was involved and for which a minimum punishment of 45 days' imprisonment and a maximum punishment of 10 years' imprisonment was considered. As I explained earlier, trafficking in drugs is a serious matter, but it does not deserve the same approach as the one I took in Paradis . [ 30 ] The reality is that what really undermines public trust in a justice system is the delay to proceed with what it is considered as a serious criminal matter.

Once a matter of that sort is not dealt with as expeditiously as the circumstances permit, especially in a military context, and no explanation is provided by the prosecutorial authorities to explain such delay to deal with the charges, the public trust and confidence in the military justice system would be undermined if the court does not suspend the sentence of imprisonment, especially in the context where the offender has taken that delay to his advantage and made things for his life that are considered by this court as special or exceptional circumstances which deserve to suspend the execution of the sentence of imprisonment. [ 31 ] At the end of the day, clearly the public would conclude that if the court does not suspend the sentence of imprisonment in the circumstance of this case, it would create an unbalanced situation between the application of the sentencing principles of denunciation and general deterrence on one side and rehabilitation on the other side.

This is not a situation where the offender's conduct was so egregious that the objectives of denunciation and general deterrence must prevail. [ 32 ] In consequence, the court will accept the joint submission made by counsel to sentence you to imprisonment for a period of 30 days, considering that it is not contrary to the public interest and will not bring the administration of justice into disrepute. Then, as suggested by the defence counsel, the court will suspend the sentence of imprisonment. [ 33 ] I have also considered whether this is an appropriate case for a weapons prohibition order as stipulated under

section 147.1 of the National Defence Act . In my view, such an order is not necessary or desirable in the interest and the safety of any persons or of the offender in the circumstances of this trial and I will make no such order. Also absent of any application by the prosecution to make an order for the provision of samples for DNA analysis in accordance with subsection 196.14(3) of the National Defence Act for a secondary designated offence, the court does not have to consider making such an order.

FOR THESE REASONS, THE COURT: [ 34 ] FINDS you guilty of the seventh and eighth charge for offences under paragraph 130 of the National Defence Act for possessing and trafficking in drugs. [ 35 ] SENTENCES you to imprisonment for a period of 30 days. [ 36 ] SUSPENDS the sentence of imprisonment.

Counsel: Lieutenant-Commander S. Leonard, Canadian Military Prosecution Services Counsel for Her Majesty the Queen Mr. V.G. Findlater, Lakeland Law Group Counsel for ex-Private M.R. Masserey