Courts Martial

 

COURT MARTIAL

 

Citation:  R. v. Steven, 2016 CM 1013

 

Date:  20160715

Docket: 201504

 

Standing Court Martial

 

Canadian Forces Base Esquimalt

Esquimalt, British Columbia, Canada

 

Between: 

 

Her Majesty the Queen

 

- and -

 

Master Seaman J.W.L. Steven, Offender

 

 

Before:  Colonel M. Dutil, C.M.J.

 

REASONS FOR SENTENCE

 

(Orally)

 

[1]               Master Seaman Steven admitted his guilt to one count of conduct to the prejudice of good order and discipline under section 129 of the National Defence Act; and one count of drunkenness under section 97 of the National Defence Act. The charges read as follows:

 

 

[2]               Counsel made a joint recommendation in asking the Court to impose a sentence composed of a severe reprimand and a fine in the amount of $3,000, payable in two equal instalments. It is recognized that unless the Court finds that such jointly proposed sentence is contrary to public interest or that it could bring the administration of justice into disrepute, the Court must accept it. For the following reasons, the Court accepts the proposal made by counsel.

 

[3]               Master Seaman Steven enrolled in the Canadian Armed Forces Naval Reserve on 20 November 2006 in the trade of naval communicator. At the time of the incident giving rise to this proceeding, he was a leading seaman. He was appointed to master seaman effective 1 January 2015. Master Seaman Steven completed trade qualification courses including Qualification Level (QL) 2 Part 2 in 2011 and Primary Leadership Qualification in 2013. He has served as a naval communicator for significant periods on a Class C basis on board numerous Royal Canadian Navy Kingston-class ships since 2010. In his time in the Canadian Armed Forces, he has amassed 673 sea days and has deployed in support of Operation CARIBBE on four occasions, from 17 August to 12 October 2010 on Her Majesty’s Canadian Ship (HMCS) Brandon, from 19 February to 28 March 2014 and from 23 February to 7 April 2015 on HMCS Whitehorse and from 23 October to 9 December 2015 on HMCS Brandon. Operation CARIBBE is Canada’s participation in the multinational campaign against illicit trafficking by transnational organized crime in the Caribbean Sea and the eastern Pacific Ocean. Master Seaman Steven also deployed on HMCS Whitehorse when that ship, along with her sister ship, HMCS Nanaimo, were tasked to support Exercise Rim of the Pacific (RIMPAC) 14. Master Seaman Steven has, since the incident, continued working as a naval communicator for significant periods on Class “C” Reserve service on Kingston-class vessels. He is presently posted to HMCS Brandon as the yeoman, the senior naval communicator on board that ship.

 

[4]               To provide context, it is useful to mention that RIMPAC is the world’s largest international maritime exercise comprised of nations with an interest in the Pacific Rim region. RIMPAC is conducted on a biennial basis from the Hawaiian Islands and Pearl Harbor. It provides an important training opportunity to enhance interoperability between participating forces, improve readiness for a wide range of potential operations and strengthen military-to-military partnerships. RIMPAC 14 took place between 26 June and 1 August 2014 in the Hawaiian Islands and Southern California areas. Canada deployed more than 1000 military personnel including Army, Air and Naval forces, three ships (HMCS Calgary, HMCS Nanaimo and HMCS Whitehorse), one submarine (HMCS Victoria), and multiple aircrafts (six CF-18 Hornets, one CC-130 Hercules, one CC-150 Polaris and three CP-140 Auroras). Senior members of the Canadian Armed Forces held several key leadership positions during RIMPAC 14. In total, RIMPAC 14 involved 47 ships, six submarines, more than 200 aircrafts and roughly 25,000 personnel from 22 nations. RIMPAC 14 is a complex exercise which was conducted in three phases which were the Harbor, Force Integration Training and Free Play phases. The Harbor phase allowed face-to-face briefings, training and detailed planning to occur between participants so that they could get to know their exercise colleagues, finalize details and lay the foundation for a successful and professional operating environment. The Force Integration phase followed, which involved a structured and detailed training program which enabled participants to operate at the task force level in a robust and multinational command and control environment. The Free Play phase followed which tested those skills during a scenario in which component commanders and subordinate units responded to increasingly intense scenarios, including realistic situations that nations could face in the Pacific Rim. As a result, participating units and personnel experienced challenging, full-spectrum operations that included air, surface, submarine and land threats.

 

[5]               HMCS Whitehorse and HMCS Nanaimo were tasked to support aspects of RIMPAC 14 that were set in the Southern California area. These Kingston-class vessels each have a ship’s company of 43 and are almost completely staffed by Naval Reservists – only two positions of each ship’s company are usually filled by Regular Force members. In the course of his duties prior to the incident, Master Seaman Steven worked directly with the navigating officer of HMCS Whitehorse when he assisted her with preparation of message traffic, as well as with some equipment issues when she was the officer of the day. On board HMCS Whitehorse there were only three female crew members, two of which were non-commissioned members and the other, the navigating officer. The three female crew members shared one cabin in the forward part of the ship on the starboard side. Ship Standing Orders AL9 Change 1 Article 2132 entitled “MIXED GENDER IN MESS DECKS/LIVING SPACES” (page 2-72), paragraph 1 states “Personnel shall not enter mess decks and any other spaces temporarily designated as sleeping quarters of the opposite sex unless on official business.”

 

[6]               The incident that led to the charges before the Court occurred during the Harbor phase while HMCS Whitehorse and HMCS Nanaimo were alongside at the United States Naval Base Pier 4 in San Diego, USA. The day before the incident was Canada Day and a Canada Day reception had been organized for the evening at a pub in San Diego. Numerous members of the two Canadian ships’ companies attended, including the executive officer, navigating officer, coxswain and Leading Seaman Steven from HMCS Whitehorse. Leading Seaman Steven, as he then was, had dinner at the pub and consumed at least 10 drinks and part of a bottle of wine. He also bought drinks for others. He was quite intoxicated by the end of the evening. His bar bill was approximately US$200. Those four members of the HMCS Whitehorse ship’s company left the pub together by taxi to head back to the ship. They were dropped off at the security gate and walked the remainder of the distance to the jetty where they boarded the ship at approximately 0100 hours on 2 July 2014. The navigating officer retired to her cabin and to bed. Leading Seaman Steven spoke to a number of shipmates, stopped in the junior ranks mess to put some food in the refrigerator and then went to bed.

 

[7]               At approximately 0200 hours on 2 July 2014, Leading Seaman Steven entered into the female cabin on board HMCS Whitehorse where the three female crew members, including the navigating officer were sleeping. He entered the navigating officer’s bunk space which wakened her. As she gradually woke, the navigating officer initially thought that she was at home with her husband. As she wakened further, she realized that she was in her cabin on the ship, which was pitch-black. She felt Leading Seaman Steven’s face and facial hair and realized that he was not her husband. She became very alarmed and demanded that he identify himself. He did not answer despite her numerous demands and she, believing it to be Leading Seaman Steven, as he then was, specifically asked him if he was Leading Seaman Steven. He agreed that it was him. She told him to get out of her cabin, which he did immediately. To this date, she has and continues to suffer the consequences of the offender’s behaviour, both professionally and personally. She provided a Victim Impact Statement that leaves no doubt to the important damages on her life caused by the offender’s breach of trust of a shipmate that night.

 

[8]               She reported the incident. She was quite disturbed by the incident, but did not want formal action taken at that time. She was unable to sleep in her cabin that night. She no longer felt comfortable working with Leading Seaman Steven, who she would normally have had routine contact with in the course of her duties as navigating officer, officer of the day and as a superior officer on board the same ship. The unit commenced an investigation, interviewing many of the witnesses. The National Investigation Service also conducted an initial interview with the navigating officer. Leading Seaman Steven was landed from the ship and was flown back to Esquimalt.

 

[9]               The Military Police Unit (Esquimalt) took over the investigation. On 22 July 2014, the investigator cautioned and warned Leading Seaman Steven who agreed to provide a statement. In his statement, he stated that he was very intoxicated that evening, an eight or nine on a scale of ten. Leading Seaman Steven added that he had no recollection of being in the female cabin on the ship and that he only recalled going to bed in his own rack and then waking up in his own rack the next morning.

 

[10]           The Court was informed that this incident was one of three which occurred during that weekend which involved alleged misconduct by members of the HMCS Whitehorse ship’s company and which also involved the overuse of alcohol. As a result, Canadian military authorities withdrew HMCS Whitehorse from RIMPAC as of 3 July 2014 and ordered the ship to return to Esquimalt. There was considerable press coverage. Once alongside, the Canadian Fleet Pacific Commander reviewed the operational, administrative and disciplinary aspects of the ship and concluded that appropriate actions had been taken by the command team and that the ship was ready to resume operational tasks. Nevertheless, these three incidents, amongst others, prompted an internal review of the Royal Canadian Navy policies and procedures relating to conduct on board and ashore and alcohol. The findings of and recommendations from that review were announced by the Commander of the Royal Canadian Navy on 12 December 2014. The review prompted certain policy changes regarding personnel conduct and alcohol and increased training and communication relating to standards of conduct in the Royal Canadian Navy.

 

[11]           The fundamental purpose of sentencing at courts 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: to denounce the unlawful conduct; to deter the offender, but also others who might be tempted to commit such offences; to separate offenders from society, where necessary; to provide reparations for harm done to the victims or to the community; to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community; and, the reformation and rehabilitation of the offender.

 

[12]           The sentence must also take into consideration the following principles. The sentence must be commensurate with the gravity of the offence, the previous character of the offender and his or her degree of responsibility. It 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. In other words, punishments in the form of incarceration should be used as a last resort. Finally, the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. However, the Court must act with restraint in determining sentence in imposing such punishment that should be the minimum necessary intervention to maintain discipline. Both parties agree that the main objectives that must be emphasized in this case are denunciation and general deterrence. The sentence must also recognize the harm done to the victim and the impact that the incident had on those members of HMCS Whitehorse who lost an important training opportunity and overall operational effect on RIMPAC 14.

 

[13]           In addition to the objective seriousness of these offences, where persons found guilty are liable to dismissal with disgrace from Her Majesty’s service and imprisonment for less than 2 years respectively, the Court considers that the circumstances surrounding the commission of the offences are particularly aggravating. The breach of trust committed by the offender on a shipmate, during an important operational exercise, had serious consequences not only on the overall effectiveness of the ship and the Royal Canadian Navy present at RIMPAC 14, but it also caused significant harm to the victim, which is still present today. This is not one of those cases where a soldier becomes highly intoxicated at the mess after work, behaves in a disorderly manner and does not show up for a parade the next morning. The behaviour and conduct of the offender had very serious consequences and it can be considered to sit at the higher end of the spectrum for this type of offences.

 

[14]           However, the Court considers the following elements to be mitigating factors in the circumstances:

 

(a)        The pleas of guilty of Master Seaman Steven. The offender has admitted   his guilt to the offences before the Court. The Court considers that it is an expression of remorse for his actions and the acceptance of his responsibility. In pleading guilty, he has also spared his victim from having to testify in court.

 

(b)        Master Seaman Steven’s service record. The offender has been deployed several times over his career as a Reservist and he performed well. Despite the pending charges against him, he has since been appointed as a master seaman. This appointment seems to demonstrate that his chain of command considers that his conduct was out of character and an isolated incident.

 

(c)        The absence of a criminal or disciplinary record. The offender has no prior criminal conviction and it is his first encounter with the military justice system.

 

(d)        The delay since the commission of the offence. The facts in this case are straightforward and the investigation was completed shortly after the incident. This matter could have been brought to trial more expeditiously.

 

FOR THESE REASONS, THE COURT:

 

[15]      FINDS you guilty of one count of conduct to the prejudice of good order and discipline under section 129 of the National Defence Act and one count of drunkenness under section 97 of the National Defence Act.

 

[16]      SENTENCES you to the following punishments: a severe reprimand and a fine in the amount of $3,000, payable in two equal monthly instalments, beginning 31 July 2016.

 

Counsel:

 

Commander S. Archer for the Director of Military Prosecutions

 

Lieutenant-Commander B. Walden and Lieutenant-Colonel D. Berntsen, Defence Counsel Services, Counsel for Master Seaman J.W.L. Steven