Courts Martial

 

COURT MARTIAL

 

Citation: R. v. Gobin, 2018 CM 2008

 

Date: 20180207

Docket: 201725

 

Standing Court Martial

 

Canadian Forces Base Shilo

Shilo, Manitoba, Canada

 

Between:

 

Her Majesty the Queen

 

- and -

 

Corporal R. J. Gobin, Offender

 

 

Before: Commander S.M. Sukstorf, M.J.

 

Restriction on Publication: By court order, pursuant to section 179 of the National Defence Act and section 486.4 of the Criminal Code, directs that any information that could identify the complainant or victim in these proceedings shall not be published in any document or broadcast or transmitted in any way.

 

REASONS FOR SENTENCE

 

(Orally)

 

Introduction

 

[1]               Corporal Gobin was found guilty of one charge under section 130 of the National Defence Act (NDA), for having committed an assault, contrary to section 266 of the Criminal Code.

 

[2]               As the military judge presiding at this Standing Court Martial, it now falls to me to determine the sentence.

 

Objectives and applicable principles

 

[3]               This Court examined the evidence in light of the applicable principles and objectives of sentencing, including those set out in sections 718, 718.1, 718.2 of the Criminal Code, as far as they are compatible with the sentencing regime provided under the NDA. The Court also considered the representations made by counsel and the direct and indirect consequences that the finding and the sentence will have on Corporal Gobin. The punishment to be imposed by the Court should constitute the minimum necessary intervention that is adequate in the particular circumstances to maintain discipline and meet the interests of military justice.

 

[4]               The fundamental purpose of sentencing in a court martial is to ensure respect for the law and the maintenance of discipline, and, from a more general perspective, the maintenance of a just, peaceful and safe society. Moderation is a core principle of sentencing in Canada and does not allow a military court to impose a sentence beyond what is required in the circumstances of the case.

 

[5]               The Queen's Regulations and Orders for the Canadian Forces (QR&O) require a military judge imposing a sentence at a court martial to consider “any indirect consequence of the finding or of the sentence, and impose a sentence commensurate with the gravity of the offence and the previous character of the offender." The sentence imposed must be adapted specifically to Corporal Gobin and the offence of assault he committed and constitute the minimum necessary in the circumstances.

 

[6]               When imposing sentences, the Court shall consider one or more of the following objectives:

 

(a)                to protect the public, which includes the Canadian Armed Forces (CAF);

 

(b)               to denounce unlawful conduct;

 

(c)                to deter the offender and other persons from committing the same offence or offences;

 

(d)               to separate offenders from society, where necessary; and

 

(e)                to rehabilitate and reform offenders.

 

[7]               When imposing sentences, a military court must consider 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 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 established by the Court Martial Appeal Court and the Supreme Court of Canada decisions; and

 

(e)                lastly, any sentence to be imposed by the Court should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

 

[8]               In the Court’s view, based on the facts of this case, sentencing should focus on the objectives of denunciation and general deterrence. The Court highlights that the principle of general deterrence means that the sentence should deter not only Corporal Gobin from reoffending, but also to deter any other CAF members who might be tempted to commit similar or comparable offences. However, in this particular case, with a young, first time offender, these objectives should not trump the objective of rehabilitation.

 

The offence and the offender

 

The circumstances of the offence

 

[9]               The accused and complainant are both members of the 2nd Battalion, Princess Patricia's Canadian Light Infantry based in Shilo, Manitoba. In the fall of 2014, both were undergoing basic infantry training (hereinafter DP1 training) at Canadian Forces Base (CFB) Wainwright, Alberta when the alleged incident occurred.

 

[10]           The incident that forms the subject of the charge occurred after both the accused and complainant had completed their training in December 2014, on the final day, before they returned to CFB Shilo and proceeded on Christmas leave.

 

[11]           In reasons delivered on 5 February 2018, the court found Corporal Gobin guilty of assault considering that while the complainant A.K. was mopping the floor, Corporal Gobin did assault A.K.

 

[12]           During the court martial, the Court heard extensive witness testimony related to the shenanigans that unfolded during the course. Those activities do not form the basis of the charge before the Court and Corporal Gobin is strictly being sentenced for the offence of a one-time assault on A.K. that took place on 12 December 2014. He is not being punished for the actions of the group during that serial of training.

 

[13]           The witnesses showed considerable courage in disclosing details which admitted their personal involvement and responsibility in what I call non-charged misconduct. This is a positive step forward and their recognition that this conduct is wrong, is arguably a significant demonstration of the progress that has been made to date under Operation HONOUR.

 

The consequences of the offence

 

[14]           The victim, A.K., was invited to submit a Victim Impact Statement, which he did. In his written statement filed with the Court, he described the emotional and physical impact the events had on him. He stated that he was haunted by the event and left constantly wondering why it happened. He stated that it lingers in the back of his mind. In his statement, he stated that he was torn between reporting and keeping silent and eventually decided that he needed to come forward. He stated that he had to invest considerable mental resources in staying away from and avoiding contact with Corporal Gobin while they were both serving in the same company.

 

The circumstances of the offender

 

[15]           Corporal Gobin is 25 years old. He first joined the CAF, in November 2010, at 18 years of age, as a naval communicator. He released in January 2013 and became a carpenter’s apprentice. He rejoined the CAF in July 2014, however, this time as an infantryman. He is engaged to be married.

 

[16]           The Court heard that Corporal Gobin was first arrested by the military police on 20 July 2016 and advised that he was under investigation. He was released by a custody review officer on conditions that he remain under military authority, stay away from the complainant, keep the peace and be of good behaviour. As a result of the condition that he stay away from the complainant, the accused was removed from serving as a rifleman at the Battalion and reassigned to do administrative work in the Base Accommodations section. However, Corporal Gobin was not formally charged or made aware of the details of the charge against him until 14 December 2016, five months after he was first arrested, when was served with a Record of Disciplinary Proceedings and provided disclosure.

 

Evidence

 

[17]           During the sentencing hearing, the following evidence was placed before the Court:

 

(a)                documents required at QR&O article 112.51 relating to Corporal Gobin’s pay, career, conduct and particulars;

 

(b)               Canada, Department of National Defence, “Duty with Honour, The Profession of Arms in Canada”, Canadian Defence Academy, Canadian Forces Leadership Institute, (Ottawa: 2009);

 

(c)                Canada, Department of National Defence, “Code of Values and Ethics”, Defence Ethics Programme, (Ottawa: 2012);

 

(d)               Victim Impact Statement from A.K.;

 

(e)                Corporal Gobin’s Performance Evaluation Reports (PER) for 2015-2016 and 2016-2017; and

 

(f)         letter – Personal Character Reference written by Captain J.F Smith, Assistant Operations Officer.

 

[18]           Counsel’s submissions and the evidence before the Court have enabled me to be sufficiently informed of Corporal Gobin’s personal circumstances, allowing me to consider any indirect consequence of the sentence, so I may impose a punishment adapted specifically to his circumstances and the offence committed.

 

The position of the parties on the sentence

 

Prosecution

 

[19]           Prosecution proposed that the Court impose a sentence of a reprimand and a fine of $1,500 relying upon a number of precedents in his submission. He further argued that the sentencing objectives of denunciation and general deterrence were paramount. The Court agrees with this assessment and indicated during submissions, given the young age and future potential of Corporal Gobin as a soldier, that it is the Court’s view that these objectives must be weighed in such a manner that the sentence does not impair the objective of rehabilitation.

 

Defence

 

[20]           Defence relied upon significant case law supporting a list of mitigating factors, discussed below, advocating for a minimum punishment of a fine of $500 or a reprimand.

 

[21]           Defence submitted that the Court must be careful that the principles of denunciation and deterrence do not detract from the rehabilitative progress of Corporal Gobin which, she argued, was paramount for a young soldier at the start of his career. The Court agrees with that assessment.

 

Analysis

 

Gravity of the offence

 

[22]           The principle of proportionality lies at the heart of sentencing and a sentence imposed must be relative to the gravity of the offence. The gravity of the offence is a principle of sentencing on its own and should not be factored in as an aggravating factor.

 

[23]           In the military environment, serving CAF members as well as Department of National Defence employees work and often live in very close quarters and workspaces. This closeness demands the utmost of trust and respect of every individual. In short, Corporal Gobin violated this trust. The prosecution referred the Court to the following passage from R. v. Ewanchuk, [1999] 1 S.C.R. 330 which, I think, captures the gravity of the offence of assault:

 

28            The rationale underlying the criminalization of assault explains this. Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one’s body, and how, lies at the core of human dignity and autonomy. The inclusion of assault and sexual assault in the Code expresses society’s determination to protect the security of the person from any non-consensual contact or threats of force. The common law has recognized for centuries that the individual’s right to physical integrity is a fundamental principle, “every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner”: see Blackstone’s Commentaries on the Laws of England (4th ed. 1770), Book III, at p. 120. It follows that any intentional but unwanted touching is criminal.

 

[24]           On the facts of this case, a conviction for an offence under section 266 of the Criminal Code is serious and punishable up to imprisonment for a term not exceeding five years.

 

[25]           Given the gravity of this offence, a fit sentence must be proportional to the seriousness of the offence while emphasizing the principles of general deterrence and denunciation.

 

Parity

 

[26]           Under the principles of sentencing, the law requires that the sentence imposed be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

 

[27]           In making his recommendation on sentence, the prosecution relied upon a significant number of precedents which the Court reviewed. They include R v Lalande, 2011 CM 2005 (Lalande (finding)) and R v Lalande, 2011 CM 2006 (Lalande (sentence)) as well as the case of R. v. MacDougall, 2015 CM 1018.

 

[28]           Defence counsel relied primarily upon the case of Lalande (also referred to by the prosecution) in addition to R. v. Master Seaman B.B.J. Willms, 2007 CM 2021 (Willms (finding)) and R. v. Master Seaman B.B.J. Willms, 2007 CM 2022 (Willms (sentence)); R. v. Private J.D.P. Fortin, 2006 CM 97, R. v. Corporal J.R.M. Grandmont, 2005 CM 43, R. v. Seifi, 2009 CM 3017 (Seifi (finding)); R. v. Seifi, 2009 CM 3018 (Seifi (sentence));

 

[29]           An outline of the cases relied upon by counsel are as follows:

 

(a)                Lalande (finding) and Lalande (sentence). Defendant was a sergeant, convicted of section 95 of the NDA, striking a subordinate, with a charge of assault in alternative stayed. Defendant pushed a master corporal out of his office with the comment, “Shut your mouth little man, go back to the canteen.” Reprimand;

 

(b)               Willms (finding) and Willms (sentence). Charge 1 (alternate to charge 2): section 130 NDA, assault (section 266 Criminal Code).
Charge 2 (alternate to charge 1) section 95 NDA, ill-treated a person who by reason of rank was subordinate to him.
FINDINGS: Charge 1: Guilty. Charge 2: A stay of proceedings. SENTENCE: Reprimand.”

 

(c)                Seifi (finding) and Seifi (sentence). Private Seifi was charged with sexual assault and in the alternative touching the breast of G.L.E.C. without her consent contrary to section 129 of the NDA. Members were both on course together, Qualification Level 3 Medical Technician, and were engaged in a relay race. The complainant was piggybacking the defendant on her back when he simultaneously groped both her breasts. The defendant denied touching the complainant’s breast. Found guilty of the lesser and included offence of assault. Sentenced to a reprimand and a fine of $500;

 

(d)               Fortin. Guilty plea – section 129 for having harassed a co-worker, a military police recruit on Basic Qualification Course. Followed an outing where the complainant and the defendant were jokingly punching each other in shoulder. The defendant decided to handcuff the complainant as a joke. The complainant asked twice to be released and eventually was. Joke in bad taste between military police recruits. After hearing – joint submission – fine of $200;

 

(e)                Grandmont. Guilty plea to section 129 of NDA for using violence on a corporal to get him into a vehicle. Fine of $300;

 

(f)                 MacDougall. Guilty plea to section 97 for drunkenness and joint submission. Two minutes after receiving his appointment to master corporal, severely intoxicated, he buried his face in the breasts of his subordinate’s fiancée. Reprimand and fine of $1250.

 

Detention as last resort

 

[30]           Under the principles of sentencing, an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. In short, the court must impose a sentence of imprisonment or detention only as a last resort as established by the Court Martial Appeal Court and the Supreme Court of Canada. The proper sentencing of first offenders requires that the sentencing judge exhaust all other possibilities before concluding that imprisonment is required. On the facts of this case, I agree with prosecution that detention is not a consideration.

 

Mitigating and aggravating factors

 

[31]           In the military justice system, as well as under section 718.2 of the Criminal Code, the principles of sentencing require that a sentence be increased or reduced to account for any aggravating or mitigating circumstances relating to the offence or the offender.

 

Aggravating factors

 

[32]           The following aggravating factors were considered by the Court:

 

(a)                Victim Impact Statement. Corporal Gobin’s assault on A.K. led to severe consequences on A.K.;

 

(b)               Breach of trust and lack of respect. A.K. was a weak member of their team, and rather than being understanding or supportive, Corporal Gobin exploited an opportunity knowing that A.K. did not like roughhousing or pranks. As prosecution highlighted, A.K. struggled on the course and finally, after successfully completing it, on the last day of his course, he was subjected to an unprovoked assault from a peer, someone with whom he would serve with on their next posting;

 

(c)                Unprovoked assault. One of the most aggravating factors in this case was the nature of the assault being unprovoked. It took place after hours when there was no supervisory staff around and where no course mates were present.

 

Mitigating factors

 

[33]           The Court also considered the following factors as mitigating:

 

(a)                Absence of a conduct sheet;

 

(b)               Age of the accused and ongoing rehabilitation. The evidence before the Court is that Corporal Gobin has a promising career ahead of him within the CAF. It was noted during the sentencing hearing that upon completion of this court martial, he will be placed under an Administrative Review by his chain of command. As I advised counsel during the sentencing hearing, I see this as a positive step and recommend that Corporal Gobin embrace this as an opportunity to keep him focused in his already well established pursuit towards rehabilitation. It was noted by the Court that he has, on his own initiative, taken several courses to address his failings. These courses include: Workplace Violence Prevention; Creating A Respectful Workplace; Introduction to Defence Ethics; Harassment Prevention; and Risk Management;

 

(c)                Two above average PERs. The Court was provided with copies of Corporal Gobin’s PERs from the 2015-2016 and 2016-2017 time frames. The Court notes his above average performance in both years and the steady improvement that he has maintained;

 

(d)               Letter of support. Defence counsel highlighted some of the comments within the letter provided in mitigation which are worthy of mentioning. Corporal Gobin is described as:

 

“a consistent hard-worker and always appeared to be a reliable member of his Rifle Section. I was impressed with his sincere passion for field training and the satisfaction that he expressed simply to be a member of the PPCLI. [. . .] He assisted me several times in providing coaching to less experienced members of the team and demonstrated good leadership and mentoring capability. [. . .] I have noted him to be outgoing, confident and very social. In this respect, he is often humorous, but not mean-spirited and does not come off as a cynical or jaded person.”

 

            Finally, the letter finishes with the following:

 

“From my personal and professional interactions with Cpl Gobin, I believe that he is a good soldier and has a true passion for the job. In the future, I could see him in leadership roles at the Battalion or elsewhere within the CAF. I believe that if he were to return to the Battalion, he would be able to continue performing his duties to the standard expected of him as an Infantry Cpl.”

 

(e)        Testimonial Candour. The court was impressed with the candour and honesty that surfaced during this trial. The witnesses demonstrated moral courage in their admissions of historic wrongdoing dating back 3 years. As for Corporal Gobin, by his declarations before the Court, he took ownership of his actions and the display of his subsequent remorse is supported by his rehabilitative efforts;

 

(f)         Court martial. The fact that Corporal Gobin had to publicly face this court martial had a deterrent effect not only on him, but also for the witnesses and other members of the military community who are aware of his case. Corporal Gobin took the stand to explain what had happened on the course and publicly admitted misconduct well outside that with which he was charged. The court finds that the candour of the witnesses provided insight into the behaviour that occurred on the course and acknowledges this detailed disclosure of what unfolded may not have been easy. The Court is confident that these proceedings have provided the necessary closure for all affected within the unit, including A.K., Corporal Gobin and the witnesses who bravely testified. As the Court provided in its findings, if there was any ambiguity before, then the messaging and directives of Operation HONOUR have clarified that disrespectful behaviour is unacceptable. The Court expects that these proceedings will act as deterrent to anyone who thinks that this type of conduct is acceptable in any form or could be considered good-natured fun.

 

(g)        Public and professional stigma. As we discussed during the hearing, Corporal Gobin was first arrested in July 2016 and released on conditions. In short, for the last 19 months, he has been separated from his Battalion. He was shuffled away from his chosen career as a rifleman, having his career stalled and put in limbo. He was not charged until December 2016, five months after he was arrested. The Court expressed concern for the delay between the time of arrest and in the laying of the charges. This case was not complicated.

 

(h)        Remorse and taking responsibility for his conduct. Despite the professional stigma that he has carried since his arrest in July 2016, Corporal Gobin has focused on becoming a better soldier. When offered an opportunity to address the Court, Corporal Gobin apologized for his conduct. He stated:

 

My life has changed a lot since the allegations were made. As a result, I tried to stay positive and focused on personal development. I’ve taken a proactive approach and taken courses such as Harassment in the Workplace, Resolving Conflict Effectively and Managing Angry Moments, to better myself as a person, to better myself as a soldier, to improve on my abilities and how I can make a positive impact within the military. These activities I took part in, a little over three years ago, happened before the induction of Operation HONOUR. At that time, I may have been immature and misguided in my beliefs and thoughts, and thought that what we did was fun and in good nature. Since the inception of Operation HONOUR and through the training I mentioned, I now realize that what myself and others did was wrong and had detrimental effects. What was done does not speak towards our esprit de corps or our ethos that we believe so strongly in the military. All members, not only in the military, but in all circumstances should feel safe within the workplace. They should not have to worry about the actions of other members. Operation HONOUR encourages respect for the integrity of all members. I am deeply sorry for how my immature decisions have affected anyone within the military. Going forward I will strive to maintain a positive and respectful workplace for myself and others.

 

Consideration of order

 

[34]           As prosecution noted, pursuant to paragraph 147.1(a) of the NDA, because the offence of assault, to which Corporal Gobin has been found guilty of, could be considered an act of violence, the Court is required to consider whether it is desirable, in the interests of the safety of the person or of any other person, to make a weapons prohibition order.

 

[35]           The Court agrees with the prosecution that such an order is neither desirable nor necessary for the safety of the offender or any other person and exercises its discretion not to make an order to that effect.

 

Final comments

 

[36]           CAF recruitment brochures announce that “[i]nfantry”soldiers are the Army’s primary combat fighters and are responsible for closing with and engaging the enemy [and must be] capable of operating anywhere in the world in any environment.” That is no small task. A lot is demanded of our infantry soldiers or riflemen. This Court has stated that young soldiers, sailors, airmen and airwomen are expected to test their limits and boundaries.

 

[37]           As a rifleman, you may be asked to deploy where you might be needed to fight to the death against an enemy, or alternatively, you could be tasked to serve as a consummate diplomat, interacting and providing assistance to the world’s most vulnerable. For this reason, self-discipline is essential.

 

[38]           From ancient Roman times to today, the best armies have always been the most disciplined. As such, it follows that in international law (and Canada has signed on to the additional protocol for this) requires that armed forces be subject to an internal disciplinary system and leaders, at all levels, are required to enforce compliance with the rules of international law applicable in armed conflict. (Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, Article 43). Ultimately, that is why we have a military justice system.

 

[39]           In an effort to maintain a robust armed force capable of meeting any challenge, the CAF recruits young men and women who possess unbridled enthusiasm and energy together with great resourcefulness and trains them in duty and discipline.

 

[40]           However, when our military members operate outside of CAF expectations, appropriate course corrections must be made and this is done with the various tools at the disposal of the military justice system. Discipline in the CAF becomes a trained reflex upon which our superiors, peers and subordinates can rely, at all times.

 

[41]           As such, discipline is an inculcated pattern of obedience. It starts in training, in your unit, with your leaders instilling in you the values Canadians expect of us to be instinctive, when nobody is looking. The Court noted that these non-sanctioned activities occurred when the training staff had left for the day and members were left to their own devices. It is the way we act, when nobody is looking that is a testament to our character and reflects the discipline needed for Canadians to trust us in our roles.

 

[42]           I refer to a quote from M de Saxe, Reveries on the art of war, translated by Brig. General Thomas R. Phillips (Mineola, NY: Dover Publications, 2007), one of the earliest books on the art of war, which was heavily relied upon by Frederick the Great. It still holds true today:

 

[Translation]

 

[M]ilitary discipline [. . .] is the soul of armies. If it is not established with wisdom and maintained with unshakable resolution you will have no soldiers. Regiments and armies will be only contemptible, armed mobs, more dangerous to their own country than to the enemy.

 

[43]           Discipline requires the willingness to put others’ interests before our own, and to have respect for and compliance with the law.

 

[44]           The prosecution recommended that I impose a reprimand and a fine, while defence recommended that I impose a reprimand or a nominal fine.

 

[45]           Upon reviewing the circumstances of this case, the Court cannot ignore that this was an unprovoked attack on a course member, which was not done to be violent, but for the distinct purpose of agitating A.K., and in taunting him, you were mocking him at his expense. Further, it happened when nobody was around. In the Court’s opinion, none of the cases provided by counsel reflect sufficient parity to this case and many of them are quite dated. It is important that the sentence send a message of condemnation signaling that such conduct is wholly unacceptable.

 

[46]           The Court has considered the extensive list of mitigating factors and, more importantly, the extensive progress that Corporal Gobin has made to date in terms of his rehabilitation in the consideration of the sentence. The Court, therefore, finds that a reprimand and a significant fine are in order.

 

[47]           Corporal Gobin, the Court expects that you will move forward with your career and put this incident behind you. You have learned a great deal in the last three years and your concentrated investment in your self-improvement is a reflection of this. The imposition of a reprimand will serve as a reminder of the consequences of your reprehensible conduct. It will stand out as a blemish on your career record and will not be subject to automatic removal from your conduct sheet after one year. This is important as we must never become complacent in upholding the value of respect that is fundamental to the work we do.

 

[48]           In terms of a fine, the Court can impose a fine that is reflective of the seriousness of the offence, but that does not impair the rehabilitation process by providing flexibility in terms of payment.

 

[49]           Hence, I agree with the submission of the prosecution that a reprimand and a fine in the amount of $1,500 is appropriate.

 

FOR THESE REASONS, THE COURT:

 

[50]           SENTENCES you to a reprimand and a $1,500 fine, payable in 12 instalments of $125 per month, starting with the March 2018 pay period.

 

Counsel:

 

The Director of Military Prosecutions as represented by Major G. J. Moorehead

 

Lieutenant-Commander B.G.Walden and Major F. Ferguson, Defence Counsel Services, Counsel for Corporal R. J. Gobin