Courts Martial

 

COURT MARTIAL

 

Citation: R. v. Stewart, 2022 CM 5010

 

Date: 20220106

Docket: 202025

 

Standing Court Martial

 

Canadian Forces Base Kingston

Kingston, Ontario, Canada

 

 

Between:

 

Her Majesty the Queen

                       

- and -

 

Sailor 3rd Class Stewart, Offender

 

 

Before: Commander C.J. Deschênes, M.J.

 

Restriction on publication: Pursuant to section 179 of the National Defence Act and section 486.4 of the Criminal Code, the Court directs that any information that could disclose the identity of the person described in these proceedings as the complainant, including the person referred to in the charge sheet as “A.R.”, shall not be published in any document or broadcast or transmitted in any way.

 

SENTENCE

 

(Orally)

 

Introduction

 

[1]               Sailor 3rd Class Stewart was found guilty on 24 June 2021 for committing two offences, both punishable under section 130 of the National Defence Act (NDA); that is to say, sexual assault contrary to section 271 of the Criminal Code, in that he, on or about 9 August 2018, in Kingston, Ontario, sexually assaulted the victim, A.R (see R. v. Stewart, 2021 CM 5013). The Court must now determine and impose a fair and fit sentence, which requires that the punishment be proportional to the circumstances surrounding the commission of the offences and that takes into consideration the offender’s situation. In order to assist the Court in determining the appropriate punishment, both counsel are jointly recommending that this Court impose a punishment of incarceration for a period of two years.

 

Facts

 

[2]               Around April 2018, when he was a member of the basic training list in Kingston, Ontario, the offender met, then socialized occasionally with, the victim, A.R. During this same period, he also met and socialized with, Private Lévesque who was also a friend of the victim. On 9 August 2018, after accepting the offender’s invitation to attend an informal and impromptu gathering at his private military quarter (PMQ) on base in Kingston, Ontario, which Sailor 3rd Clas Stewart rented with Aviator Fadus, the victim and Private Lévesque arrived at the residence between 2030 and 2100 hours. Other Canadian Armed Forces (CAF) members invited by Aviator Fadus were present. That evening, the victim was particularly stressed and distraught as a result of a recent breakup with her boyfriend.

 

[3]               Upon arrival, A.R. was offered shots of Fireball Whisky (“whisky”) which she consumed with the offender. During the first forty-five minutes of her visit at the PMQ, the victim consumed around five shots of this beverage on a near empty stomach. Between twenty and forty-five minutes after her arrival, Sailor 3rd Class Stewart and the victim went separately into the kitchen around the same time. It was not contested that, while alone in the kitchen with the victim, there was a kiss between the offender and the victim.

 

[4]               Later on, the victim, Private Lévesque, and Sailor 3rd Class Stewart went into the offender’s bedroom and socialized. During this time, Private Lévesque left the room on at least two occasions for a few minutes at a time. It was not disputed that during Private Lévesque’s last absence, Sailor 3rd Class Stewart had sexual intercourse with the victim.

 

[5]               Testimonies as to what happened in the kitchen and in the bedroom when Sailor 3rd Class Stewart was alone with the victim and thereafter, while Private Lévesque and the victim were leaving the residence, varied.

 

Summary of the finding of guilt

 

[6]               The Court did not find credible the detailed account of the offender’s version of events both in the kitchen and in his bedroom. The offender had consumed, at a minimum, five drinks composed mostly of hard liquor between the moment the victim and Private Lévesque arrived at the PMQ, and the moment they migrated into his bedroom, in addition to alcohol he consumed before their arrival. Some of the defence witnesses confirmed the offender seemed intoxicated while others tried to downplay his level of intoxication. Despite his level of intoxication that evening, the offender was able to provide minute details of the words exchanged with the victim in the kitchen as well as the various sexual acts that took place in his bedroom three years ago. The detailed timeline he provided to the Court, which included a minute-by-minute account of what he claimed was a number of consensual sexual activities that took place with the victim, was found to be illogical. His testimony was also contradicted by some of defence’s own witnesses.

 

[7]               The Court found that the victim, although intoxicated by alcohol consumption, had the capacity to consent. Regarding the issue of consent, the Court found credible A.R.’s evidence that she did not consent to the sexual activities. In particular, the Court accepted that the prosecution proved beyond a reasonable doubt that the offender grabbed the victim’s buttocks while she was bent over looking in the refrigerator, then forcibly kissed by the offender while in the kitchen. The Court also accepted as credible that when the victim was alone with the offender in his bedroom, the offender pushed the victim’s head into the mattress, pulled her shorts aside, vaginally penetrated her and moved her like a rag doll while changing sexual positions. The Court also found credible the evidence provided by Private Levesque, whose testimony was consistent and was generally corroborated by some of the witnesses from the defence.

 

The issue

 

[8]               The Court must determine if the public interest test is the appropriate test to apply to a joint submission presented following a contested trial. Should the answer be yes, I must determine whether the joint submission is compliant with the public interest test.

 

Position of the parties

 

Prosecution

 

[9]               In her submission, the prosecution informed the Court that the joint submission of incarceration for a period of two years meets the public interest test. This recommendation resulted from negotiations with defence counsel that extended over a period of several months following the guilty finding. The prosecution explained that consultations with the chain of command and the victim took place during the negotiations on sentencing.

 

[10]           The prosecutor explained that the fundamental purposes of sentencing were considered when deciding on the joint submission. She affirmed that these fundamental purposes shall be achieved by imposing a sanction that has, for its objectives, to deter Sailor 3rd Class Stewart and others from adopting the same conduct, to denounce unlawful conduct and to assist in his rehabilitation.

 

[11]           In deciding on the appropriate sentence to recommend, the prosecution was informed of the circumstances surrounding the commission of the offences. In this context, she listed as aggravating that the victim attended the offender’s residence in a vulnerable emotional state and quickly became inebriated. She also considered the guilty verdict on two charges of sexual assault, with the second charge pertaining to a major sexual assault where vaginal penetration occurred without the use of protection against sexually-transmitted disease. She also found aggravating what she perceived as an abuse of trust of a fellow soldier and friend who took advantage of a sister in arms. She further considered the lasting emotional effects of the sexual assaults on the victim. The prosecutor also cited the lack of remorse as being an aggravating factor.

 

[12]           In mitigation, the prosecution acknowledged that Sailor 3rd Class Stewart is a first-time offender, is young, and held a junior rank. Additionally, the infractions were committed three and a half years ago. Although the pre-sentence report assessed the offender as a moderate risk for recidivism, the prosecution contended there is a real potential for rehabilitation in this case, in particular if the offender is incarcerated in a penitentiary where appropriate services for sexual offenders are provided.

 

[13]           The prosecution contended that the joint submission is within the range of punishment, and that the principles of the Supreme Court of Canada (SCC) decision, R. v. Anthony-Cook, 2016 SCC 43 apply even though the joint recommendation is presented after a verdict of guilt. The prosecution explained that the joint submission meets the public interest test. 

 

[14]           Finally, the Court should impose the required ancillary orders: the order to comply with the Sex Offender’s Information Registry Act (SOIRA) in accordance with subsection 227.01 (1) of the NDA and the collection of DNA samples in accordance with subsection 196.14 (1). As fingerprinting was already done by the military police during their investigation, no order in this regard is required. The prosecution is not recommending that a weapon prohibition order be imposed on Sailor 3rd Class Stewart.

 

Defence

 

[15]           The defence contended that there are a number of possible aggravating factors for this type of offence that are not present in Sailor 3rd Class Stewart’s case. In particular, he claimed that there was no violence involved and that the age gap between the offender and the victim, who was not a minor at the material time, was minimal.

 

[16]           He also considered many mitigating factors, such as Sailor 3rd Class Stewart’s young age. In addition, he deemed the conduct that evening to be out of character. As for the offender’s personal situation, he explained that Sailor 3rd Class Stewart attended college. The offender is motivated and has strong ethics. He also does volunteer work and has no prior conviction.

 

[17]           Defence counsel affirmed that Sailor 3rd Class Stewart has a strong potential for rehabilitation. These proceedings have a significant deterrent effect on the offender, and, in fact, he currently suffers emotionally and psychologically. Defence counsel explained that the psychologist who assessed Sailor 3rd Class Stewart concluded that the risk of recidivism is moderate. Nevertheless, three years have elapsed without any signs of re-offending. He finally argued that the proposed sentence of incarceration for a period of two years is consistent with the parity principle. He agrees that the proposed sentence also meets the objectives of denunciation, general deterrence and rehabilitation.

 

Evidence

 

[18]           The Court examined and considered the documentary evidence listed at article 111.17 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O) and provided by the prosecution, in accordance with article 112.51 of the QR&O. The prosecution entered a document titled, “Sex Offender Interventions at Federal Correctional Facilities”, an informative pamphlet dated 1 December 2021, Exhibit 11, from Robert M. Rittwage, Indigenous Correctional Program Officer of Correctional Service of Canada.

 

[19]           Defence introduced an agreed statement of facts, which includes additional information pertaining to Sailor 3rd Class Stewart’s situation, in particular, a summary of the report from Dr Jean-Philippe Vaillancourt, forensic psychologist who was mandated to assess, amongst other things, the offender’s risk of recidivism.

 

Victim impact statement (VIS)

 

[20]           The prosecution sought to enter the VIS. Relying on the case of R. v. Bremner, 2000 BCCA 345, the defence raised concerns regarding its content. He argued that the content of the document expanded beyond the requirements contained at section 203.6 of the NDA, because the victim was addressing the offender in the statement. The Court accepted the defence’s position that the VIS should not address the offender directly (R. v. McDonough, [2006] 209 CCC (3d) 547 at paragraph 30) and asked the prosecutor to inform the victim of the legal requirements and to offer her an opportunity to make appropriate changes in order for the VIS to conform to the principles contained in article 112.481 of the QR&O. Following an adjournment, the victim, who was attending the proceedings by video link, read an amended version of the VIS that conforms to the law.

  

The analysis

 

Sentencing principles of the Military justice system

 

[21]           When determining a sentence, the Court must be guided by the sentencing principles contained in the NDA. Subsection 203.1(1) enunciates the fundamental purposes of sentencing, which are:

 

(a)                 to promote the operational effectiveness of the Canadian Forces by contributing to the maintenance of discipline, efficiency and morale; and

 

(b)                to contribute to respect for the law and the maintenance of a just, peaceful and safe society.

 

[22]           The fundamental purposes shall be achieved by imposing just sanctions that have one or more of the objectives listed at subsection 203.1(2), such as to promote a habit of obedience to lawful commands and orders, to maintain public trust in the CAF as a disciplined armed force, or to assist in rehabilitating offenders. The objectives of the sentence are dictated by the particularity of the case and of the offender.

 

[23]           Finally, section 203.2 of the NDA provides for the fundamental principle of sentencing, “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

 

Role of counsel

 

[24]           It is part of counsel’s mandate in representing their respective clients to recommend to the Court a sentence that they deem fit and fair. Counsel have a comprehensive and complete knowledge of the circumstances surrounding the commission of the offence, while defence counsel is also aware of the offender’s personal situation.

 

[25]           When considering an appropriate sentence to recommend, counsel will often engage in resolution discussions. The SCC recognized in Anthony-Cook that, “properly conducted, [these resolution discussions] permit the system to function smoothly and efficiently.” Joint submissions provide many benefits to the accused, the participants, the unit, and the military justice system. They assist in limiting the resources normally required to support a contested trial because generally, a guilty plea forms part of the agreed-upon joint submission.

 

Application of the public interest test

 

[26]           The SCC in Anthony-Cook, in recognizing these many benefits, has established the public interest test for trial judges dealing with a joint submission. It dictates that joint submissions should not be departed from by trial judges. However, if the joint submission would cause an informed and reasonable public to lose confidence in the institution of the courts or would be contrary to the public interest, only then should the sentencing judge follow certain steps before considering rejecting the recommendation.

 

[27]           In this case, the joint submission is presented following a contested trial where a guilty finding ensued. Thus, the benefits of a joint submission identified by the SCC in Anthony-Cook are not necessarily obvious in this case, particularly when the victim of a major sexual assault was required to testify in court during a six-day trial.

 

[28]           In determining whether the same high threshold applies to this case, I have reviewed the jurisprudence that may shed light on this issue. Enumerating the many benefits of a joint submission in Anthony-Cook, the SCC stated at paragraph 41 that:

 

[F]or joint submissions to be possible, the parties must have a high degree of confidence that they will be accepted. Too much doubt and the parties may choose instead to accept the risks of a trial or a contested sentencing hearing”

[My emphasis].

 

[29]           Thus, the SCC seems to have established that the public interest test would also apply when a joint submission is presented following a contested trial on finding leading to a guilty verdict.

 

[30]           Any doubts regarding the applicability of the public interest to joint recommendations on sentence following a guilty verdict were removed recently by the Quebec Court of Appeal in Baptiste c. R. 2021 QCCA 1064 at paragraphs 71 to 74:

 

[71]         The importance of preserving the high degree of confidence necessary to prevent an unnecessary contested sentencing hearings and the important role of the Crown as the protector of the public interest, as the Supreme Court underlined in Anthony-Cook and recently in Ontario (Attorney General) v. Clark, cannot be ignored and do not simply vanish after a trial.

 

[72]        Even though the benefits of an uncontested sentencing hearing after trial are different in magnitude from a guilty plea before trial, they too save “precious time, resources, and expenses, which can be channeled into other matters”.

 

[…]

 

[74]        Timely and efficient sentencing hearings are expected under s. 11(b) of the Charter. So is cooperation between counsel, including through joint submission after trial. This “is no small benefit” because it allows “our justice system to function more efficiently”. Obviously, any time that “goes to one case cannot go to another”.

[Footnotes omitted]

 

[31]           It falls on the Crown to ensure that critical aspects of the case, such as the joint recommendation being reached after a contested trial where the victim of the sexual assault was not spared the emotional cost of testifying in court, are taken into consideration. Further, in light of the additional information and submissions conveyed to me by the prosecution, both the victim, who was consulted, and the offender, were given some assurance as to the probable outcome regarding the sentence to be imposed. This most likely has served to mitigate the stress associated with the uncertainty of the outcome for both the offender and the victim. It also saved time and resources that would be required for both parties to present evidence in order to put their best foot forward in support of their respective recommendation on sentence.

 

[32]           I therefore find that the principles established by the SCC in Anthony-Cook applies to a joint submission presented following a contested trial where a verdict of guilt was pronounced. Indeed, even when provided in these circumstances and although the magnitude of the benefits is different, the offender, victim, court participants and the military justice system still benefit from a joint recommendation.

 

Consideration of the joint submission

 

[33]           Having accepted that the public interest test applies to a joint submission presented following a guilty verdict, I must now examine the joint submission and determine if it is contrary to the public interest or whether it would cause an informed and reasonable person or public to lose confidence in the institution of the courts. As Moldaver J. stated in Anthony-Cook at paragraph 34:

 

[A] joint submission should not be rejected lightly … . Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. This is an undeniably high threshold — and for good reason  . . . 

 

[34]           Although the threshold for intervention of the judge is high, trial judges are still required to examine the jointly proposed sentence. Joint recommendations are not sacrosanct. Howver, if the joint submission is not contrary to the public interest, or if it would not bring the military justice system into disrepute, this Court is required to accept it even though it may have arrived at a different sentence in the absence of a joint recommendation. This means that I have limited sentencing discretion in this case.

 

[35]           When considering a joint submission, trial judges can rightfully assume that counsel were mindful of the statutory sentencing principles when agreeing on the joint submission. It is also assumes that counsel took into consideration all relevant facts when mutually agreeing upon an appropriate sentence. Counsel submissions usually provide confirmation that they did in fact consider key aspects of the case, including the existence of aggravating factors, and of the offender’s personal situation. Additionally, when adduced as evidence as part of the sentencing hearing, an agreed statement of facts provides information that may present mitigating factors that were also considered during the negotiations, which would further support the joint submission.

 

The nature and gravity of the offences

 

[36]           In examining the joint submission, I have considered the nature and gravity of the offences Sailor 3rd Class Stewart was found guilty of. Regardless of the level of force used, a sexual assault is a violent act where the bodily integrity of the victim is violated in the most invasive way. When committed on a female victim, the SCC has established In R. v. Ewanchuk, [1999] 1 S.C.R. at paragraph 69 that:

 

                Violence against women is as much a matter of equality as it is an offence against human dignity and a violation of human rights. As Cory J. wrote in Osolin, supra, at p. 669, sexual assault “is an assault upon human dignity and constitutes a denial of any concept of equality for women”.

 

[37]           A sexual assault is a serious offence. Everyone who commits a sexual assault is liable to imprisonment for a term of not more than ten years. The NDA also provides the definition of a serious offence at section 2, which means:

 

 an offence under this Act or an indictable offence under any other Act of Parliament, for which the maximum punishment is imprisonment for five years or more, or an offence that is prescribed by regulation under subsection 467.1(4) of the Criminal Code.

 

[38]           In addition to the nature and objective gravity of the offences, the circumstances surrounding the commission of the offences as well as the situation of the offender are factors that the Court shall take into consideration when determining whether the proposed punishment meets the public interest test.

 

Aggravating factors

 

[39]           Therefore, the following aggravating factors specific to this case were taken into consideration:

 

(a)               Seriousness of the second charge: Legal precedents have established that a sexual assault is categorized as major where it is of such a nature that a reasonable person could foresee that it is likely to cause serious psychological or emotional harm, whether or not physical injury is caused. It includes but is not limited to non-consensual vaginal intercourse. This categorization was accepted by courts martial (see R. v. Rivas, 2011 CM 2012; R. v. Royes, 2013 CM 4034; and R. v. Cooper 2018 CM 2014). A major sexual assault normally calls for a more severe sentence, with some provinces establishing a departure mark at three years’ incarceration for such an offence. The second charge involved a major sexual assault, as the offender pushed the head of the victim onto the bed and vaginally penetrated her, moving her like a rag doll when he was changing sexual positions.

 

(b)               Omission to use a condom: There was vaginal penetration without the use of any protection against sexually transmitted disease.

 

(c)               Vulnerability of the victim: The Court also considered the vulnerability of the victim that evening. She was both emotionally distraught from a recent breakup and she was intoxicated due to a fast consumption of hard liquor on an empty stomach. She was only eighteen years old, and found herself alone with the offender, a friend and a brother in arms she trusted, believing that she was safe in his bedroom.

 

(d)               Military context: This happened at a PMQ.

 

(e)               VIS: Further, the victim showed a lot of courage in coming forward to her chain of command to report the conduct, to provide a testimony describing intimate details of the sexual assaults and to deliver her VIS in open court. In her VIS, she expressed feeling robbed of a period of her youth that should be the happiest time of her life. She also stated that she is now plagued by anxieties and stress. She described having issues with being touched and feeling sick to her stomach when she hears the words “sexual assault”. Having to face Sailor 3rd Class Stewart while re-living the evening was also a very difficult and uncomfortable experience for her. It is apparent that the sexual assaults, which she described as the most traumatic moment of her life, had a long-lasting emotional effect on her.

 

[40]           The Court has not accepted the prosecution’s contention that the offender showed a lack of remorse and that this aspect of the case should be considered aggravating. While it is true that remorse is a mitigating factor, it is a well-known principle that lack of remorse should not be construed as an aggravating factor. In a case cited by the prosecution, R. v Shrivastava, 2019, ABQB 663, the sentencing judge explained that the consideration regarding lack of remorse in that specific case was constrained to a narrow issue, in particular, that it may be relevant in assessing an offender’s future dangerousness. Shrivastava was a case where the offender claimed that he took responsibility for his actions following the finding of guilty, but continued to deny to the assessing expert any wrongdoing on his part, minimizing his actions and responsibility in the commission of the sexual assault. The judge found that his expression of remorse was hollow, therefore was unable to mitigate the punishment based on his newly-found alleged remorse. This is not the situation in the case at bar; there is no evidence before the Court that would allow the consideration of such a factor that I would, in any case, be very reluctant to consider. Sailor 3rd Class Stewart has exercised his right to plead not guilty and to test the evidence in Court. He should not be faulted for that.

  

Mitigating factors

 

[41]           The Court also accepted counsel’s submissions regarding mitigating circumstances and took into consideration that Sailor 3rd Class Stewart has no prior criminal convictions. He is young and has shown that he is committed to his community and continued to do his best at work despite facing these proceedings.

 

The offender’s situation

 

[42]           Sailor 3rd Class Stewart just turned twenty-six years old. From 2012 to 2017, before joining the CAF, Sailor 3rd Class Stewart worked for the Parks, Forestry and Recreation Division of the City of Toronto as a lifeguard and swimming instructor. During this period, Ms Pilien who was Sailor 3rd Class Stewart’s manager during his last year of employment, describes him as very approachable, friendly, trustworthy, reliable, and punctual. She opines that colleagues appreciated working with Sailor 3rd Class Stewart; that he is honest, a team player and that he was frequently complimented for his work ethics and his ability to communicate effectively with the public. She thinks very highly of him. She describes hims as being caring, understanding, respectful and as a man of integrity that she trusts and feels safe around.

 

[43]           In December 2015, Sailor 3rd Class Stewart completed a college certificate in Emergency Telecommunication at the Humber College Institute of Technology and Advance Learning.

 

[44]           He enrolled in the CAF on 30 August 2017. He was posted to the Canadian Forces Leadership and Recruit School on 9 September 2017 and completed Basic Military Qualification-Common on 1 December 2017. In his Course Report for his Basic Military Qualification-Land from March 2018, he was assessed as very determined and motivated, quickly grasping the required theory of section level tactics and to have demonstrated that he can apply this knowledge in a tactical setting. He was found to have consistently displayed very strong ethics and have understood the Army ethos, conscientiously applying it to various situations. He was found to have supported his section through the course, building a strong cohesive team.

 

[45]           In April 2019, in his evaluation report for the Morse Code Operator Course, the offender was assessed as a student who demonstrated the desire to succeed the training. He quickly worked up to the Module 1 Morse standard of ten words per minute and continued to develop his speed beyond that during the course. Being ahead in class, he began to use his time to prepare for the material in his Development Period 1 such as general communications theory. Sailor 3rd Class Stewart was able to qualify at fifteen words per minutes, an achievement deemed exceptional for Module 1. He successfully completed touch typing with a skill rated at thirty-five words per minutes, and was assessed as a great student who applied himself throughout the course.

           

[46]           In 2018 and 2019, the offender volunteered with iCan Bike, an organization teaching children with special needs how to ride a bicycle independently. As a returning volunteer, he was found to have interacted professionally with all children, families and staff members and his motivation, perseverance and his sense of gratitude were appreciated.

 

Pre-sentence report prepared by forensic psychologist

 

[47]           A summary of the pre-sentence report prepared by Dr Vaillancourt, forensic psychologist, was included in the agreed statement of facts by the defence. The agreed statement of facts indicates that Dr Vaillancourt met with the offender on one occasion, 11 August 2021. Based on this meeting and using clinical data and objective data obtained through the Millon Clinical Multiaxial Inventory-III (MCMIIII) and the Minnesota Multiphasic Personality Inventory-3 (MMPI-3), Dr Vaillancourt’s diagnostic impression is that Sailor 3rd Class Stewart suffers from a chronic adjustment disorder with anxiety and appears to present characteristics of the schizoid personality.

 

[48]           In particular, according to his report, Dr Vaillancourt identified a range of clinical and symptomatic manifestations related to this state of maladjustment which were clearly associated with the current court martial proceedings. Dr Vaillancourt assessed that the emotional difficulties experienced by Sailor 3rd Class Stewart seem to have emerged in the form of a deficiency in handling his emotions at first, which then evolved into a depressed perspective, and he now finds himself in an anxio-depressive state. The offender reported to Dr Vaillancourt, during their August meeting, experiencing feelings of despair, pessimism, feeling overwhelmed and also reported suicidal ideation. The data obtained by diagnosis tools reflected anxiety, stress, shyness, a tendency to withdraw and highly restricted behaviours in Sailor 3rd Class Stewart. According to the report, such individuals generally have low self-esteem, can be apprehensive, anxious, and nervous. The report also stated that the anxious symptoms conveyed by the offender seem to have been experienced at a considerable and possibly disabling level of intensity. The offender’s symptoms such as his apprehension, fear, anhedonia, lack of concentration, lack of motivation, loss of appetite and significant social withdrawal were corollary to a personality with certain schizoid characteristics, such as a desire for solitude, fragility in relationships and a certain amount of blunted affect. Dr Vaillancourt assessed that Sailor 3rd Class Stewart has a fragile adaptation level, trying to maintain some form of adaptive balance by avoiding anxiety-inducing situations. The offender appeared to have withdrawn from his relationships in a significant manner.

 

[49]           During their 11 August 2021 meeting, Dr Vaillancourt also assessed the risk of recidivism that Sailor 3rd Class Stewart represents. To assess this risk, Dr Vaillancourt used the Hare Psychopathy Checklist-Revised (PCL-R), the STATIC-99-R and the Stable-2007. The results obtained by the offender on the PCL-R were in the 5th percentile, meaning that 95 per cent of the prison population have a higher score than the subject, positioning him within the “non-psychopath” group. The STATIC-99-R is an assessment tool moderately predictive of sexual recidivism. Sailor 3rd Class Stewart presented two of the ten factors statistically indicative of a risk of recidivism. Based on these two factors, the offender was found to be in the “moderate” risk category for being accused or convicted of another sexual offence. The Stable-2007 assesses the needs related to intervention and treatment. Sailor 3rd Class Stewart was found to be within the range of moderate needs for intervention and treatment.

 

[50]           The report identified that when the results of the STATIC-99-R and the Stable-2007 are combined, individuals with similar results to Sailor 3rd Class Stewart reoffended 3.8 per cent of the time within a year of their release and 7.5 per cent of the time within five years, which corresponds to a moderate risk of recidivism.

 

Parity

 

[51]           Turning now to the parity principle, the Court examined precedents for similar offences to determine whether the joint submission is similar to sentences imposed on similar offenders. Sentences imposed by military tribunals in previous cases are useful to appreciate the kind of punishment that would be appropriate in this case.

 

[52]           The Court was informed of court martial cases similar to the circumstances of this case, in particular Royes, Thibault and Cooper, and of the other precedents provided by counsel. After a review of these precedents, the Court concludes that the proposed sentence, while at the lower end on the range of punishment, corresponds to punishments imposed in the past for similar offences. That is sufficient to allow the Court to conclude that the proposed sentence is not unfit. Consequently, the joint recommendation meets the parity principle.

 

Objectives

 

[53]           In light of the offences for which Sailor 3rd Class Stewart was found guilty and in light of his personal circumstances, I accept that the fundamental purposes of sentencing shall be achieved by imposing a sanction that has for its objectives in this case to deter this offender and others from adopting the same conduct and to denounce unlawful conduct, while not being so harsh as to impede his rehabilitation. The offender’s young age and involvement in volunteering, his academic studies and also the positive feedback for his past and more recent work-related activities and professional endeavours are indicative of the potential for his rehabilitation.

 

Ancillary orders

 

[54]           The Court makes an order requiring that Sailor 3rd Class Stewart comply with the SOIRA. Subsection 227.01(1) of the NDA provides that when a court martial imposes a sentence on a person for an offence referred to in paragraph (a) or (c) of the definition  of “designated offence” within section 227, it shall make an order requiring the person to comply with the SOIRA for the applicable period specified in section 227.02. The purpose of that order is to make available information of convicted sexual offenders in order to help police investigate other offences.

 

[55]           Further, since Sailor 3rd Class Stewart was convicted of a primary designated offence pursuant to section 487.04 of the Criminal Code, the Court also makes an order authorizing the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis from Sailor 3rd Class Stewart pursuant to section 196.14 of the NDA.

 

[56]           Finally, based on the position taken by the prosecution, I have also considered whether this is an appropriate case for a weapons prohibition order, as stipulated under section 147.1 of the NDA. In this case, such an order is neither desirable nor necessary in the circumstances of this trial. Even though the offence of sexual assault constitutes a violent act, in the case before the Court, violence with a weapon against a person was not used, threatened or attempted and I will not make an order to that effect.

 

Conclusion

 

[57]           The Court reviewed the documentary evidence introduced as exhibits and considered counsel’s submissions. It is apparent that they carefully assessed the offender’s specific circumstances when they arrived at their joint submission. Although I might have been inclined to impose a more severe sentence, since counsel identified and considered the most relevant aggravating and mitigating factors surrounding the commission of the offence, properly addressed the applicable principles and objectives of sentencing in this case, I accept counsel’s position that the need for general and specific deterrence as well as denunciation, are met with the proposed sentence.

 

[58]           Sailor 3rd Class Stewart’s actions on the evening of 9 August 2018 are repugnant. He took advantage of an intoxicated fellow soldier during the few minutes he had alone with her in his bedroom. He did this quickly so he would not get caught. I truly hope that this is indeed an isolated event that is out of character. His youth, continued professional efforts while awaiting the completion of these proceedings and his volunteering within his community are indication of a potential for rehabilitation.

 

[59]           In short, in consideration of all the aggravating and mitigating factors, the sentencing principles and the fact that the joint submission presented by counsel falls within the range of punishment for similar cases, the Court finds that the joint recommendation is not contrary to the public interest and would not bring the military justice system into disrepute.

 

FOR THESE REASONS, THE COURT:

 

[60]           SENTENCES Sailor 3rd Class Stewart to incarceration for a period of two years.

 

[61]           ORDERS Sailor 3rd Class Stewart to comply with the SOIRA.

 

[62]           ORDERS the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis.

 

Counsel:

 

The Director of Military Prosecutions, as represented by Major A. Dhillon and Major C.R. Gallant

 

Major A. Gélinas-Proulx, Defence Counsel Services, Counsel for Sailor 3rd Class J.G. Stewart