R v Hanson, 2013 CM 3021

COURT MARTIAL Citation: R v Hanson , 2013 CM 3021 Date: 20130829 Docket: 201327 Standing Court Martial Moss Park Armoury Toronto Toronto, Ontario, Canada Between: Her Majesty the Queen - and - Warrant Officer J.C. Hanson, Offender Before: Lieutenant-Colonel L.-V. d'Auteuil, M.J.

REASONS FOR SENTENCE (Orally) [ 1 ] Warrant Officer Hanson, having accepted and recorded a plea of guilty in respect of the second and third charge, and especially concerning the third charge on facts that differ materially from facts alleged in the statement of particulars and for which the prosecution concurred, the court finds you now guilty of these charges.

Considering that the first charge was withdrawn by the prosecution, then the court has no other charges to deal with. [ 2 ] It is now my duty as the military judge, who is presiding at this Standing Court Martial, to determine the sentence. [ 3 ] The military justice system constitutes the ultimate means to enforce discipline in the Canadian Forces, which is a fundamental element of the military activity. The purpose of this system is to prevent misconduct or, in a more positive way, see the promotion of good conduct.

It is through discipline that an armed force ensures that its members will accomplish in a trusting and reliable manner successful missions. It also ensures that public order is maintained and that those who are subject to the Code of Service Discipline are punished in the same way as any other person living in Canada.

[4] It has been long 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, (see R v Généreux (SCC), [1992] 1 SCR 259 at 293).

That being said, the punishment imposedby any tribunal, military or civilian, should constitute the minimum necessary intervention that is adequate in the particularcircumstances. [5] Here, in this case, the prosecutor and the defence counsel recommended to this court to impose a severe reprimand and a finein the amount of $4,000 in order to meet the justice requirements. [6] 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 andefficiently.

It emphasizes that in particular context of military justice, and I quote again on the same page: Breaches of military discipline must be dealt with speedily and frequently, punished more severely than would be the case if a civilianengaged in such conduct. However, the law does not allow military court to impose a sentence that would be beyond what is required in the circumstances of acase.

In other words, any sentence imposed by a court must be adapted to the individual offender and constitute the minimum necessaryintervention since moderation is the bedrock principle of the modern theory of sentencing in Canada. [7] The fundamental purpose of sentencing in a court martial is to ensure respect for the law and maintenance of discipline byimposing 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. [8] When imposing sentences, a military judge must also take into consideration the following principles: a. the sentence must be proportionate to the gravity of the offence; b. the sentence must be proportionate to the responsibility and previous character of the offender;

c. the 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 in 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. [ 9 ] 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. [ 10 ] Here in this case, the court is dealing with the military offences of ill-treating a subordinate and drunkenness.

About ill-treating, it goes at the heart of the principal of ethics for each Canadian Forces member to respect the dignity of all persons, including those who are subordinate by rank. The essence of this offence is to avoid situations of abuse of authority within the Canadian Forces which could impact on the trust, confidence, and morale that must exist between soldiers in order to accomplish a mission. [ 11 ] On 27 April 2012, Class A training was conducted at the Moss Park Armoury, Toronto, Ontario. Warrant Officer Hanson was present at Moss Park Armoury in uniform and participated in that training.

He completed his shift at 2359 hours on that day. Further to that, he stayed at the unit in uniform. He had been drinking for awhile when on or about 0300 hours, 28 April 2012, he called two members of his unit, Corporal McRae and Corporal Kalabic, over to see him at the Battalion Orderly Room door, at the BOR. [ 12 ] Corporal McRae and Corporal Kalabic went over and spoke with Warrant Officer Hanson. During that time, Warrant Officer Hanson walked over to a soldier who was sleeping while on weapon picket and slapped his hand on the desk and walked away.

A short time later, Warrant Officer Hanson again walked over to the soldier sleeping at the weapon picket desk and turned the desk over, stating something to the effect that he could have the soldier charged for that. [ 13 ] Warrant Officer Hanson spoke to Corporal McRae and Corporal Kalabic for a short period of time. Corporal Kalabic left the conversation and walked away and left Corporal McRae alone with Warrant Officer Hanson. They continued speaking and Warrant Officer Hanson said that he should have seen the soldier sleeping while on duty as weapons picket.

He asked Corporal McRae, "Have you ever had a knife put to your throat?" Corporal McRae responded by saying, "No, I never had that." At that stage, Warrant Officer Hanson pulled a knife from his pocket, opened the blade and pressed it against Corporal McRae's neck between his Adam's apple and chin. Corporal McRae then asked Warrant Officer Hanson to take it away.

Warrant Officer Hanson then removed the knife from Corporal McRae's neck and then stated, "When you're captured overseas men will rape you in the ass." Warrant Officer Hanson then advised Corporal McRae that he performed well as a soldier while on exercise.

A few minutes later Corporal McRae was speaking to Corporal Kalabic when Warrant Officer Hanson approached him and asked Corporal McRae if they were good and tried to justify his actions. [ 14 ] In arriving at what the court considers a fair and appropriate sentence, the court has considered the following mitigating and aggravating factors: a. the court considers as aggravating the objective seriousness of the offences. The offences you were charged with were laid first in accordance with

section 95 of the National Defence Act for ill-treating a subordinate by reason of rank. This type of offence is punishable by imprisonment for a term not exceeding two years or to less punishment. Also you were charged in accordance with

section 97 of the National Defence Act for drunkenness. This type of offence is punishable by a maximum of 90 days' detention or to less punishment; b. secondly, the subjective seriousness of the offences, and there's two aspects to it: i. first, is the lack of respect that you disclosed by your actions towards your subordinate. Your function as a senior NCO and your position in this regiment put on you many responsibilities, so you have to lead by example no matter what is the context, especially when you take some alcohol, so you failed to behave in an appropriate manner just for a brief moment.

Your extensive military experience and your personal skills that brought you at that rank should have pushed you to do

better; and ii. secondly, as mentioned by the prosecution, you did not hesitate to use a weapon. I just want to remind you the definition of a weapon in the Criminal Code .

Section 2 of the Criminal Code , " "weapon" means any thing used, designed to be used or intended for use, (

a) in causing death or injury to any person, or for the purpose of threatening or intimidating any person." So basically you used a weapon. You conduct is not criminalized pursuant to the Criminal Code , but you have to think about that. Bringing in such an incident, such a weapon is an aggravating factor. No matter what was the purpose at the time, it is loud and clear that you didn't pay attention to what you were doing by using this thing and you realized just after that that probably you went too far.

But despite that, I think it had an impact on your subordinates and at least you scared them and I have to consider this as an aggravating factor. [ 15 ] There are also mitigating factors that I have considered: a. first, there's your guilty plea to both charges. 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 to this society.

It also disclosed the fact that you are taking full responsibility for what you did; b. your career potential as a member of the Canadian Forces. Having a look at your MPRR, during the last two years you progressed very well and I think it is because the unit recognized in you a leader.

You still have many years ahead and you, as I heard it through the testimony of Major Pedwell, you still have a future in this unit, so I have to consider that as a mitigating factor; c. the fact that you had to face this court martial, which was announced and accessible to the public and which took place in your own unit in the presence of some of your peers has no doubt had a very significant deterrent effect on you and on them.

It sends the message to others that the kind of conduct you displayed regarding the respect that must exist between a superior and a subordinate will not be tolerated in anyway and will be dealt with accordingly; d. the absence of any annotation on your conduct sheet. There is no indication of the commission of any similar offence, military or criminal offence, in relation or not to what happened; e. your career performance in this unit.

Clearly you're committed to this unit, you're dedicated to the Canadian Forces and your performance reports and all the letters I have seen clearly demonstrate that and it has to be considered as a mitigating factor also. You're very professional and the commendation you received clearly demonstrates your dedication to the Canadian Forces and the community; and f. there's also the fact that it is an isolated and really out of character incident.

It's an occurrence that you are not use to doing something like this; people are not use to seeing you do things like this and I have to consider that in your favour as a mitigating factor. [ 16 ] As a matter of parity on sentence as suggested by the prosecutor, the first and more importantly the second time he addressed this court, case law indicates clearly that such offences call for a sentence that goes from a severe reprimand to a reprimand and a fine or only a fine.

In these circumstances the joint submission clearly falls in that range. [ 17 ] Also if the court accepts the suggestion by counsel, 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. [ 18 ] I have not been very often in this unit over the last seven years as a judge, it's probably the second or third time I'm here and I will tell you that while I was walking on the parade square there are some banners that we can see, everybody can see from all units here, and one is saying, "Pay attention to detail." I clearly understand that you wanted to pass a message.

Details are very important; if you don't pay attention to details in the military, especially in a mission involving some other people with you, it may have some consequences such as injuries to others. I keep on my mind the court martial of Master Corporal Lewis , who came in court and explained why he reacted so much as an instructor in Saint Jean for having new recruits not paying attention to details.

Some of his peers died because he thought he didn't pay attention to details in combat and I think you went overseas many times and you may have referred to some experience, maybe, maybe not, I don't know, but it looks like you went through some experiences. I think it is a good message to pass to

others and as a leader it is really a good message, but the manner, especially the respect you must disclose to subordinates is really important.

And from this time I hope you will keep on your mind and use this court martial that involved just only you as a tool to improve your leadership and improve the skills and the attention of others to detail, and I wish you best of luck in these circumstances. [ 19 ] From my perspective the court will accept the joint submission made by counsel to sentence you to a severe reprimand and a fine in the amount of $4,000, considering that it is not contrary to the public interest and will not bring the administration of justice into disrepute.

FOR THESE REASONS, THE COURT: [ 20 ] FINDS you guilty of the second charge on the charge sheet for an offence under

section 95 of the National Defence Act for ill- treating a person who by reason of rank was subordinate to you and also finds you guilty of the third charge for an offence under

section 97 of the National Defence Act for drunkenness, but on facts that differ materially from the facts alleged in the statement of particulars in the charge sheet. [ 21 ] SENTENCES you to a severe reprimand and a fine in the amount of $4,000. The fine shall be paid in monthly instalments of $500 commencing on the 1st day of September, 2013. If you are released from the Canadian Forces, the entire outstanding amount shall become due and payable the day before the effective date of release from the Canadian Forces. Counsel: Lieutenant-Colonel K.A.

Lindstein, Canadian Military Prosecution Services Counsel for Her Majesty the Queen Major C.E. Thomas, Directorate of Defence Counsel Services Counsel for Warrant Officer J.C. Hanson