R. v. Gillespie, 2018 CM 3002

COURT MARTIAL Citation: R. v. Gillespie , 2018 CM 3002 Date: 20180206 Docket : 201752 Standing Court Martial 4th Canadian Division Support Base Petawawa Petawawa, Ontario, Canada Between: Her Majesty the Queen - and - Captain A.R. Gillespie, 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] Captain Gillespie pleaded guilty to the second charge on the charge sheet.

The Court, having accepted and recorded a plea of guilty in respect of that charge, now finds you guilty of that charge. As a matter of fact, the prosecution on the first and the third charge decided not to present any evidence and for those two charges already found you not guilty. [2] Now regarding the second charge, both the prosecutor and the offender’s defence counsel made a joint submission on the sentence to be imposed by this Court.

They recommend that this Court sentence you to a severe reprimand and a fine of $7,000. [3] 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.

[4] The circumstances surrounding the offence were explained through the Statement of Circumstances, which reads as follows: Statement of Circumstances Background 1 . At all material times, XXX XXX XXX Captain A .R. Gillespie was a member of 2 Royal Canadian Horse Artillery, Canadian Armed Forces, Regular Force. 2 . Captain Gillespie was deployed as a member of Task Force Cyprus, OP SNOWGOOSE, from 23 July 2015 until 30 July 2016. 3 .

Shortly following his return from Cyprus, Captain Gillespie was deployed on Exercise STALWART GUARDIAN 2016, at Garrison Petawawa, form 13-26 August 2016, occupying the position of Battery Captain of Headquarters Battery, 2 Royal Canadian Horse Artillery. 4 . In the late evening of 20 August 2016, Captain Gillespie, and Major Bradley, the Battery Commander, had come upon four subordinate members of the platoon, including Corporal Botnari, who were discovered violating light discipline. The members were using white light to illuminate a card game they were playing entitled: “Magic".

The four members were counselled by Captain Gillespie and assigned additional duty shifts. 5 . The following day, on 21 August 2016, at the Centre Lake bivouac site within the Garrison Petawawa Training Area, members of the platoon were unloading ruck sacks from a MSVS troop transport. 6 . Corporal Botnari was positioned in the truck bed of the MSVS and was unloading ruck sacks and kit to members as they presented themselves at the rear of the MSVS. 7 . At approximately 1500hrs on 21 August 2016, Captain Gillespie approached the rear of the vehicle and requested his rucksack.

At that time, in an effort to crack a joke, Corporal Botnari asked Captain Gillespie, "do you play magic?" referring to the light discipline incident of the night before. 8 . Captain Gillespie, in the immediate proximity of at least six platoon members, proceeded to un-holster his issued 9mm Browning service pistol, cocked the action and pointed it at Corporal Botnari. After a few seconds had passed, without saying a word, Captain Gillespie un-cocked the weapon, returned it to his holster, and walked away. 9 .

The 9mm service pistol was not loaded when the weapon was pointed at Corporal Botnari and no live small arms ammunition had been issued during the exercise. 10 . At all material times, Captain Gillespie was in a position of authority in relation to Corporal Botnari. 11 . At approximately 1730hrs, Major Bradley, after having been advised of the incident involving Captain Gillespie, confiscated Captain Gillespie's 9mm Browning pistol. 12 .

The 2 RCHA Commanding Officer, Lieutenant-Colonel Hampton, after being made aware of the incident by Major Bradley, attended the bivouac site and made a decision to relieve Captain Gillespie of his post and return him to Garrison.

13 . As the actions of Captain Gillespie had been witnessed by multiple members of the platoon, the chain of command took immediate action to address this conduct and reinforce that corrective measure would be immediately taken. The conduct of Captain Gillespie in pointing his pistol at Corporal Botnari was prejudicial to good order and discipline. 14 . Pending the outcome of an investigation, Captain Gillespie was removed from 2RCHA lines and was provided alternative employment within Base Operations, 4 CDSG Base Ops. Procedural History 15 .

Following an initial investigation by Military Police, Captain Gillespie was arrested and released with conditions by a Custody Review Officer on 23 August 2016. 16 . On 28 March 2017 a Record of Disciplinary Proceedings was signed which included two charges, being one charge under

section 130 of the National Defence Act for pointing a firearm contrary to section 87(1) of the Criminal Code of Canada and one charge contrary to

section 129 of the National Defence Act , for

an Act to the Prejudice of Good Order and Discipline. 17 . On 9 May 2017 charges were referred to the Director of Military Prosecutions for disposal. 18 . On 2 August 2017 three charges were preferred by the Director of Military Prosecutions including those on the RDP dated 28 March 2017 and one additional charge of Abuse of Subordinates, contrary to

section 95 of the National Defence Act . Additional Incident Considered In Resolution 19 . During the Post Charge review process conducted by the Director of Military Prosecutions, information came to light which disclosed another incident concerning the unlawful pointing of a firearm by Captain Gillespie during Exercise STALWART GUARDIAN. 20 . A Supplemental investigation by Military Police revealed that at some point during Ex STALWART GUARDIAN, between the dates of 13 and 20th August 2016, Captain Gillespie was located in the vicinity of Call Sign 8 Command Post. 21 .

Two other members, Master Corporal Baird and Master Corporal Lovell, were also located in the Command Post. The two members were discussing the game Pokémon GO. Captain Gillespie, who was in a different location in the room but within earshot of the two Master Corporals, stood up, removed his pistol from its holster and pointed it at the two Master Corporals. He began continuously cocking his pistol as he approached the two Master Corporals, and stated “if I hear Pokémon Go one more time I’ll…..” or words to that effect. 22 .

The incident was not immediately reported to the chain of command and only came to light during the investigation of the charges which form the basis of these proceedings. 23 . Following the Referral of Charges, the Prosecution and Defence arrived at a mutually agreeable resolution of all charges whereby Captain Gillespie would plead guilty to Charge two on the Charge Sheet and the remaining charges would not be pursued by the Prosecution. 24 .

Further to the negotiated resolution, and pursuant to subsection 194(1) of the National Defence Act , the facts which underlie the second incident of pointing a firearm at Master Corporal Baird and Master Corporal Lovell are admitted by Captain Gillespie and have been taken into consideration in the final resolution on sentence which will be jointly proposed to this Court.

[5] An Agreed Statement of Facts was also entered as evidence, and reads as follows: AGREED STATEMENT OF FACTS 1. Captain Gillespie is a first time offender. This Standing Court Martial constitutes his first appearance before a Military Tribunal. 2. Shortly after charges were preferred, Captain Gillespie instructed his Defence Counsel to resolve this matter efficiently and to proceed with a guilty plea. Prosecution was engaged quickly thereafter. CAPT GILLESPIE’S PERSONAL CIRCUMSTANCES 3.

Following a yearlong deployment with Task Force Cyprus, OP SNOWGOOSE, which ended on 30 July 2016, the accused did not take his post deployment leave which had been scheduled to take place until 16 August 2016. 4. After communicating with his 2RCHA chain of command, Captain Gillespie agreed to participate in Exercise STALWART GUARDIAN 2016, shortly following his return from Cyprus, with the intent to accommodate his chain of command. 5. On 22 August 2016, Captain Gillespie presented on his own accord to CAF Psychosocial Services in order to obtain support. 6.

CAF Psychosocial Services assessed Captain Gillespie as being affected by stress, and sleep deprivation. There were signs of burn out from work. 7. Following an assessment conducted of the member, CAF Psychosocial Services concluded that Captain Gillespie was not a danger to himself or for others and that he was extremely conciliatory about his actions. 8. On the same day, Captain Gillespie was prescribed with Trazodone, an antidepressant that would facilitate sleep regulation and recommended to take his post-deployment leave starting immediately. 9. Captain Gillespie took

part in thirteen cognitive therapy sessions under the guidance of the CAF Mental Health Services, between 22 August 2016 and 29 September 2017 – following these sessions CAF Psychosocial Services recommendation was to close the file as the treatment was completed. 10. Captain Gillespie was placed on Counselling & Probation as a result of the incidents that led to this Court Martial. The administrative measures took place between 3 November 2016 and 3 May 2017. 11.

In order to complete his Counselling & Probation, Captain Gillespie had to attend the PSP Training Managing Angry Moments, a 2 days Program offered by Health Promotion in the Canadian Forces. This mandatory training successfully completed on 17 and 19 January 2017. 12. On 16 July 2016, Captain Gillespie was awarded a Force Commander Commendation for his professionalism and excellent performance during his service with the United Nations Peacekeeping Force in Cyprus, UNFICYP.

13. A few weeks before the incidents that led to this charge, Captain Gillespie was assessed by BGen M.H.L. Bourgon, CJOC DCOS Ops as recommended for immediate promotion and employment in challenging staff position at the ops strategic levels. 14. In an impact Statement provided following the charges which form the basis of these proceedings, Lieutenant-Colonel J.G. Hampton, Commanding Officer, 2 RCHA, stated that he has lost trust in Captain Gillespie’s ability to lead subordinates. An Impact Statement from Lieutenant-Colonel Hampton, dated 5 February 2018 is attached at Annex A . 15. Lieutenant-Colonel R.D.

Raymond, Deputy Commander 4th Canadian Division Support Group, former supervisor of the accused during these disciplinary proceedings, has stated that he has complete confidence in Captain Gillespie’s ability to lead subordinates. An Impact Statement provided to the Prosecutor in an email dated 7 January 2018 from LCol Raymond is attached at Annex B . 16. Lieutenant-Colonel B.J.

Hartson, Commanding Officer, Ops Services, 4th Canadian Division Support Group, current supervisor of the Captain Gillespie, confirms that Captain Gillespie is a valued member of the Operations team and his performance is above that of his peers in all aspects. Lieutenant-Colonel Hartson states that he is very confident that Captain Gillespie has the ability to lead subordinates in an appropriate and effective manner. An Impact Statement provided to the Prosecutor in an email dated 9 January 2018 from Lieutenant-Colonel Hartson is attached at Annex C . 17.

Captain Gillespie has been employed as the Operations Officer, 4th Canadian Division Support Base Operations Services Petawawa since the fall of 2016. [Annex A, B and C omitted.] [6] Although this 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 ( Anthony-Cook ), at paragraph 32 . [7] 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. [8] This approach relies heavily on the work of the prosecution as representing the community’s interest, which would include the CAF and the chain of command at the unit of the accused and also on the defence counsel as acting in the accused’s best interest. [9] It is the duty of counsel to provide the Court with the full circumstances in relation to the offender and circumstances surrounding the commission of the offence, that it must be done without the judge requesting the information. [10] In the actual context of this court martial, I am satisfied that the information necessary for my understanding was provided in full. [11] In this case, objectives related to the denunciation and deterrence of the offender were used to frame the discussions among counsel.

Rehabilitation was also considered. [12] Captain Gillespie initially enrolled in 2003 as a private in the Reserve Force He joined the Regular Force as an officer in 2004 and progressed to the rank of captain in 2008. He had different employment. He was also deployed in Cyprus for one year, and his tour was very successful. He didn’t take time off after his tour; he went on another exercise and I would say that the evidence disclosed that there was some kind of burnout at the time that resulted in you having a very short fuse.

And without excusing what happened, this may explain in some ways why it happened. [13] Captain Gillespie decided to consult immediately after the incident and dealt with personal physical and mental health issues

at the time. He was also put under counselling and probation by his unit. He worked on his personal condition and was successful. [14] Also, Captain Gillespie made an admission pursuant to

section 194 of the National Defence Act ( NDA ) for having committed an offence of the same nature between 13 and 20 August 2016, which was considered as an aggravating factor by the parties in the course of their discussions. [15] Also, in accordance with

section 147.1 of the NDA , the court martial shall consider whether it is desirable, which for me means necessary, to issue a weapons prohibition order where the circumstances disclose that it is in the interest of the safety of the persons or any other person. The evidence put before me does not disclose that such thing exists, so I do not see necessary to issue a weapons prohibition order as suggested by counsel. [16] Then, I will accept the joint submission made by counsel because it does not go against the public interest. FOR THESE REASONS, THE COURT: [17] FINDS Captain Gillespie not guilty of the first charge, for an offence under

section 130 of the NDA and not guilty of the third charge, for an offence under

section 95 of the NDA . [18] FINDS Captain Gillespie guilty of the second charge, for an offence under

section 129 of the NDA . [19] SENTENCES Captain Gillespie to a severe reprimand and a fine of $7,000, payable in monthly instalments of $1,000. The first payment being payable immediately, followed by six other monthly instalments of $1,000. If for any reason Captain Gillespie is released prior to the fine being paid in full, then the remaining amount must be paid at the time of his release. Counsel: The Director of Military Prosecutions as represented by Major C. Walsh Major B.L.J. Tremblay, Defence Counsel Services, Counsel for Captain A.R. Gillespie