Courts Martial

 

COURT MARTIAL

 

Citation: R. v. Sloan, 2018 CM 2019

 

Date: 20180529

Docket: 201804

 

Standing Court Martial

 

14 Wing Greenwood

Greenwood, Nova Scotia, Canada

 

Between:

 

Her Majesty the Queen

 

- and -

 

Corporal S.G.B. Sloan, Offender

 

 

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

 

REASONS FOR SENTENCE

 

(Orally)

 

Introduction

 

[1]               Today, Corporal Sloan, admitted his guilt to the second charge on the charge sheet. Considering that the prosecutor offered no evidence on the first and third charges, the Court finds him not guilty of those charges. Having accepted and recorded a plea of guilty with respect to the second charge, the court must now determine and pass sentence on that charge:

 

 

[2]               The evidence before this Court includes a Statement of Circumstances, which reads as follows:

 

“STATEMENT OF CIRCUMSTANCES

 

1.                  On 14 December 2011, Corporal Sloan enrolled in the Canadian Armed Forces (CAF). At all material times, Cpl Sloan was a member of the Regular Force posted to 14 Wing, 14 ACSS Squadron located in Greenwood, Nova Scotia. He is currently an Aerospace Telecommunications and Information Systems Technician.

 

2.                  On 6 June 2011, Corporal Sloan read and signed a Canadian Forces Drug Control Program (the CAF Drug Control Program) Policy. He thereby declared that he would comply with the CAF Drug Control Program and specifically QR&O, chapter 20, article 20.04 to not use prohibited drugs.

 

3.                  On 7 February 2015, Cpl Sloan sustained a concussion when he intervened to stop a fight. From that incident he experienced prolonged post-concussion symptoms of headaches, nausea, and anxiety, which were treated by his military physician.

 

4.                   On 13 and 14 May 2016, in the course of another investigation, the Military Police sought and executed a search warrant at the residence of Pte Burrell. Military Police seized multiple mobile devices belonging to Pte Burrell. SMS evidence was uncovered from the devices, which led to an investigation concerning Cpl Sloan’s use of marihuana. Data extraction from the cell phone showed that:

 

a.                   On 20 September 2015, Cpl Sloan contacted Pte Burrell by way of short message service (SMS). He wanted to purchase marihuana, a schedule II substance also referred to as cannabis under the Controlled Drugs and Substances Act as it existed at the time. Pte Burrell did not have marihuana for sale on that occasion.

 

b.                  On 3 October 2015, Cpl Sloan by way of SMS organized the purchase of 7 grams of marihuana from Pte. Burrell. Cpl Sloan attended Pte Burrell’s residence to complete the transaction. Cpl Sloan used the marihuana he purchased in Greenwood, Nova Scotia.

 

c.                   On 10 October 2015, 6 November 2015, and 15 November 2015, in a manner similar to 3 October 2015, Cpl Sloan purchased, each time 7 grams of marihuana from Pte Burrell. He used the marihuana in Greenwood, Nova Scotia after each purchase.

 

5.                  On 18 November 2015, Cpl Sloan visited his physician. He reported that he believed that the medications used to treat his post-concussion symptoms were ineffective. He asked his physician if he could treat his medical issues with medical marihuana or cannabis.

 

6.                  Cpl Sloan’s physician advised him that medical cannabis or marihuana cannot be prescribed to members of the CAF. He was also advised that he could not be referred to another physician for that purpose, and that a marihuana prescription could lead to medical release from the CAF.

 

7.                  On 1 December 2015, Cpl Sloan purchased 7 grams of marihuana from Pte Burrell and used it in Greenwood, Nova Scotia.

 

8.                  Cpl Sloan knew that his use of marihuana was in violation of the CAF Drug Control Program.”

 

[3]               An Agreed Statement of Facts was also entered as evidence, which reads as follows:

 

“AGREED STATEMENT OF FACTS

 

1.                  During the time of the offence, Cpl Sloan reports that he was going through the worst period of his life. He had been dealing with numerous medical issues as a result of a head injury received in February 2015. The injury occurred while he was breaking up a fight involving a friend. As Cpl Sloan was facing his friend and pulling her away from the man who was pushing her, the man struck Cpl Sloan on the left side of his face. Since it was in the middle of winter and quite icy outside of the establishment, Cpl Sloan slipped and fell, striking his face off of the concrete. He lost consciousness and does not remember much of the incident after that.

 

2.                  The injuries that Cpl Sloan suffered that day were extensive. They included fractures of the orbital bone, nose (which required surgery for a deviated septum), cheekbone and maxilla, as well as a concussion. The fractures caused obvious issues, including severe pain, and constant discomfort, but those issues seemed to be easier to deal with over time. The concussion later developed into Post-Concussion Syndrome, causing constant headaches, dizziness, fatigue, confusion, insomnia and anxiety. Cpl Sloan reports that he had never dealt with such issues before. They were constantly overwhelming him and affecting all facets of his life.

 

3.                  Cpl Sloan had been prescribed a number of medications, including Ativan, to treat the issues, but they had negative side-effects that he could not handle. He discussed the possible benefits of medical marijuana with his CAF physician but was told that it was not an option available to CAF members. He then made the ill-advised decision to self-medicate with marijuana obtained illicitly.

 

4.                  In early January 2016, Cpl Sloan met his current partner who brought significant positive change to his life. She changed his diet, they exercised together constantly and in May 2016 they competed together at the Blue Nose Marathon, in which Cpl Sloan finished in the top 60. Since that time, he has become more involved in the local civilian and CAF communities. He has volunteered at a local animal hospital, coached the 14 Wing Lady Bombers hockey team and played on the 14 Wing Softball team. He is also a Supply Location (SLoc) account holder for his unit, and is the Entertainment Co-chair for the 14 Wing Junior Ranks Mess Committee.

 

5.                  Since the offence, Cpl Sloan has performed well at 14 ACCS with no further disciplinary issues or deficiencies in conduct or performance.

 

6.                  In the future, Cpl Sloan indicates that he hopes to continue to give back to his community and wishes to advance in his career as an ATIS technician.

 

7.                  CWO Sommerfeld, the Squadron Warrant Officer, has noted that Cpl Sloan, since and despite this incident, has been a positive influence on others in the unit. He has shown full remorse and acceptance of responsibility for the offence and at no time did he try and convince anyone that he was not at fault. CWO Sommerfeld does not see this incident as having any negative effect on overall group morale and discipline within the unit. He believes that the court martial process itself has had significant deterrence for anyone else thinking that such behaviour is acceptable. He evaluates Cpl Sloan as a hard-working, energetic tradesperson who will continue to grow within his occupation. Cpl Sloan has been preparing for his QL5 course and CWO Sommerfeld believes that he will be successful in completing this extremely challenging training. CWO Sommerfeld is of the view that the offence was a one off event and that Cpl Sloan knows about and has fully accepted responsibility for the stress that he has placed on both the unit leadership and its members and is truly sorry for what he has done.”

 

Joint submission

 

[4]               In a joint submission, counsel recommend that I impose a fine in the amount of $200.

 

[5]               This joint submission before the court is reviewed in the context of the current Supreme Court of Canada (SCC) guidance in R. v. Anthony-Cook, 2016 SCC 43. In that decision, the SCC clarified that a trial judge must impose the sentence recommended in a joint submission “unless the proposed sentence would bring the administration of justice into disrepute, or is otherwise not in the public interest”.

 

[6]               As background, a plea bargain occurs when counsel come together, outside the court, to discuss their respective positions in what we call a quid pro quo manner which, in this case, resulted in a joint recommendation to the court. In essence, the prosecution agrees to recommend a sentence that the accused is prepared to accept, avoiding the stress of a trial and providing an opportunity for offenders, such as Corporal Sloan, to start making amends and rehabilitating. By encouraging plea deals, the burden on the court is reduced and the prosecution benefits directly by not needing to take every matter to a full court martial.

 

[7]               As you heard when I verified the guilty plea earlier, by entering into a plea bargain, the constitutional right to be presumed innocent is given up and this should never be done lightly. In fact, by virtue of the oath taken by all service members, this right is one we all stand to protect. Thus, in exchange for making a plea, the accused must be assured of a high level of certainty that the court will accept the joint submission.

 

Assessing the joint submission

 

[8]               The prosecutor who proposes the sentence is aware of the needs of the military and its surrounding community and is responsible for representing those interests. Conversely, defence counsel acts exclusively in the accused’s best interest, which, in this case, ensures that the accused’s plea is a voluntary and informed choice and unequivocally acknowledges his guilt.

 

[9]               As members of the legal profession and accountable to their respective law societies, the court relies heavily on the professionalism and judgement of the prosecution and defence counsel and their duty to the court.

 

Evidence

 

[10]           In this case, the prosecutor read the Statement of Circumstances and then provided the documents required under Queen’s Regulations and Orders for the Canadian Forces (QR&O) article 112.51 that were supplied by the chain of command. Similarly, defence read the Agreed Statement of Facts which was introduced on consent so that the court could be informed of the facts specific to the personal circumstances of Corporal Sloan.

 

[11]           Furthermore, the Court benefitted from counsel’s submissions to support their joint position on sentence where they highlighted the facts and considerations relevant to Corporal Sloan.

 

[12]           Counsel’s submissions and the evidence before the Court have enabled me to be sufficiently informed of Corporal Sloan’s personal circumstances allowing me to consider any indirect consequence of the sentence, so I may adapt and impose a punishment specifically for him taking into account the rehabilitation and progress he has made to date.

 

The offender

 

[13]           Corporal Sloan is 34 years old. He enrolled on 14 December 2011 and, by all accounts, he appears to have served his country well and has no previous conduct or criminal record for the court to consider.

 

[14]           As noted in the Agreed Statement of Facts, Corporal Sloan has already made significant rehabilitative efforts that cannot go unnoticed by the court.

 

Objectives of sentencing to be emphasized in this case

 

[15]           The prosecution has emphasized that, in their negotiations, he and defence counsel closely considered the objectives of sentencing. On the facts of this case, both the prosecution and defence submit that the objective they considered most important is that of rehabilitation, which they argued is supported by general and specific deterrence as well as denunciation.  On the facts before the Court, I agree with their assessment.

 

[16]           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 that which is required in the circumstances of the case. Based on the charges before the court, if a harsh punishment is not required and there is flexibility in addressing the problematic conduct, then the court must consider this. This is a principle that is engrained in Canadian law and it applies equally to the court martial system.

 

Parity

 

[17]           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.

 

[18]           In making his recommendation on sentence, the prosecution relied upon a significant number of precedents which the Court reviewed. They include R. v. Ex-Second Lieutenant M. Barnaby, 2007 CM 1010, R. v. Racine, 2014 CM 1001, R. v. Trull, 2015 CM 1010, the summary trials of Corporal Gallant and Private Clements as well as a case tried in the civilian system, R. v. Lushman, [2012] N.J. No. 294. In short, the type of punishment given for a one-time “prohibited use” type offence ranges from minor punishments up to a $500 fine.

 

[19]           In the military justice system, as well as under paragraph 718.2(a) 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. Based on the balancing of these circumstances, and in a case such as this where there is evidence of very positive rehabilitative efforts by the offender, the court must consider this in reducing the sentence.

 

Aggravating factors

 

[20]           After hearing the submissions of counsel, the Court highlights the following aggravating factors for the record:

 

(a)                General operational considerations – In this case, as the prosecution noted, the offender communicated with another CAF member to acquire the prohibited substance of marihuana for personal use, contrary to the Canadian Forces Drug Control Program (CAF Drug Control Program) as set out in DAOD 5019-3. The military community is a small one that must remain operationally focused at all times and this type of activity cannot be tolerated. Prohibited drug use within the military community can have disastrous effects both in terms of safety as well as on the morale and cohesiveness of units. Whether supporting, maintaining or operating aircraft, ships or weapon systems, military members must be able to rely upon and trust the professional work of their colleagues at all times, 24 hours a day, 7 days a week.

 

There is no similar charge in either the Controlled Drugs and Substances Act or the Criminal Code that replicates a prohibition on “usage” as set out in QR&O 20.04 for CAF members. However, we must be aware that this type of prohibition exists in an employment context in other industries and is not unique to the CAF. It is for this reason, no matter what happens in the future with the legalization of marihuana, prohibitions set out in QR&O 20.04 and under the CAF Drug Control Program (either current or revised) must be complied with. 

 

(b)               Self-medicating.  Corporal Sloan knew that self-medicating himself with marihuana violated the CAF Drug Control Program as he was specifically advised by his CAF physician that he could not be prescribed marihuana.  Further, the physician advised him that his use of the substance could lead to his release. Although the Court accepts that he was suffering and did not take the marihuana for recreational use, he still knowingly took the prohibited substance and this as an aggravating factor.

 

Mitigating factors

 

[21]           After hearing the submissions of counsel, the Court highlights the following mitigating factors for the record:

 

(a)                Cooperation with military authorities - From the moment the allegation was first brought to his attention, Corporal Sloan cooperated with the authorities, including his participation in a National Investigation Service interview;

 

(b)               Guilty plea – Corporal Sloan’s plea of guilty for this offence, as described in the Statement of Circumstances, must be given its full weight. He showed genuine remorse and his courage in accepting responsibility early in the process cannot go unnoticed by the Court. As the prosecution highlighted, his guilty plea saved the Court and counsel considerable time. The prosecution would have had to lead two expert witnesses and a trial might have lasted several weeks. Corporal Sloan’s guilty plea also saved his unit considerable time as it would have had to staff and support the court martial;

 

(c)                Previous good conduct - The Court recognizes that Corporal Sloan has no previous record to consider. 

 

(d)               Positive Rehabilitation - Despite suffering during a difficult period in his life, Corporal Sloan took many positive steps to improve his life and has gone above and beyond in his efforts towards his rehabilitation;

 

(e)                Delay - The Court noted that we are now 2.5 years post offence and that similar individuals who were identified in the same drug investigation, during the same time frame were tried by summary trial, well over 1 year ago. Corporal Sloan was not provided the choice to elect to be tried by summary trial and the Court has considered this a mitigating factor;

 

(f)                 Recent positive job performance – After the incident occurred, Corporal Sloan received exceptional support from his unit and his chain of command.  Today he showed his gratitude by thanking them.  However, most importantly he has already demonstrated his appreciation, by responding to their constructive encouragement through his positive job performance, his support for the CAF mission, as well as his engagement in sports, volunteer work and coaching.

 

[22]           In their submissions, counsel argued that this is an exceptional case where the positive rehabilitative efforts the member has made must be recognized and rewarded. Corporal Sloan is a young man with a great deal of potential. I hope he will see this incident as a turning point. In a few years from now, he may identify himself in a young corporal or private and he will be presented with an opportunity to mentor and affect positive change in that individual just as his chain of command encouraged him.  I sincerely hope that he sees this incident and its aftermath as a catalyst of positive change in his life.

 

[23]           Counsel argue that under Defence Administrative Orders and Directives (DAOD) 7006-1, a fine in the amount of $200 will automatically be removed from a member’s conduct sheet after a period of 12 months, if there are no further convictions entered. I commend the creativity of counsel and agree that in the unique circumstances of this case, the Court should consider imposing such a sentence.

 

[24]           Corporal Sloan, before I pass sentence, I would like to commend you on the positive turnaround you have made. Yes, you made a mistake during a very stressful time in your life. However, you displayed courage and honour accepting responsibility for your conduct. The Court notes that the public acceptance of responsibility is not easy. This is a public trial and the decision will be publicly recorded and available for many years to come.  The court hopes that it will stand as an excellent example and incentive for members, who have had similar lapses in judgement to turn their lives around. In short, it is the way we subsequently deal with lapses in our judgement that reveals our true character; and sometimes public mistakes deliver stronger lessons than private ones. Corporal Sloan, in both your words of allocution where you thanked your chain of command, as well as your outstanding contribution to your local community through coaching and volunteer work, you have demonstrated positive leadership; the Court anticipates that if you remember the lessons you learned from this incident, you will have a bright career ahead in the CAF.

 

Conclusion

 

[25]           After considering counsel’s submissions in their entirety and considering all the evidence before the Court, I must ask myself whether the proposed sentence would be viewed by the reasonable and informed CAF member, as well as the general population, as a breakdown in the proper functioning of the military justice system. In other words, would acceptance of the proposed sentence cause the CAF community and the public to lose confidence in the military justice system?

 

[26]           Considering all of the factors, the circumstances of the offence and of the offender, the indirect consequence of the finding or the sentence, the gravity of the offence and the previous character of the offender, I am satisfied that counsel have discharged their obligations in making their joint submission. The punishment of a fine in the amount of $200 sends a message that this type of conduct will not be tolerated in the CAF, but in your personal circumstances it sends a significant message that extensive rehabilitation efforts will, to some extent, be rewarded. The recommended sentence is in the public interest and does not bring the administration of justice into disrepute.

 

FOR THESE REASONS, THE COURT:

 

[27]           In light of the prosecution not offering any evidence, the court FINDS you not guilty of charges 1 and 3 and guilty of charge 2.

 

[28]           SENTENCES you to a fine in the amount of $200.

 

Counsel:

 

Major M.E. Leblond and Lieutenant-Commander D. Schroeder for the Director of Military Prosecutions

 

Major A. Bolik, Defence Counsel Services, Counsel for Corporal S.G.B. Sloan