Courts Martial

 

COURT MARTIAL

 

Citation: R. v. Mason, 2023 CM 2005

 

Date: 20230216

Docket: 202302

 

Standing Court Martial

 

8 Wing Trenton, Building 22

Astra, Ontario, Canada

 

Between:

 

His Majesty the King

 

- and -

 

Master Corporal A. Mason, Offender

 

 

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

 

Restriction on Publication: Pursuant to paragraph 183.6(1) of the National Defence Act, the Court orders that any information that could identify the complainant identified as “A.B.” in the charge sheet shall not be published in any document or broadcast or transmitted in any way, except when the disclosure of such information is in the course of the administration of justice, when it is not the purpose of that disclosure to make the information known in the community;

 

REASONS FOR SENTENCE

 

(Orally)

 

[1]               Master Corporal A. Mason admitted his guilt to one charge contrary to section 93 of the National Defence Act (NDA) for disgraceful conduct. The particulars of that charge read as follows:

 

“FIRST CHARGE Section 93 of the National Defence Act

BEHAVED IN A DISGRACEFUL MANNER Particulars: In that he, on or about 26 June 2019, at or near Canadian Forces Detachment Mountain View, Ameliasburgh, Ontario did touch A.B.’s genital region without her consent.”

[2]               The Statement of Circumstances filed in court is reproduced to provide a full account of the circumstances of both the offence and the offender. The Statement of Circumstances reads as follows:

 

“STATEMENT OF CIRCUMSTANCES

 

1.      On 26 June 2019, 424 Transport and Rescue Squadron held a unit function at the airport at Canadian Forces Detachment Mountain View. The event included a dinner followed by a large bonfire. The accused, MCpl Arthur Mason and the complainant, A.B. (then a MCpl) both attended this event.

 

2.      Later in the evening, A.B. was bent over roasting marshmallows at the bonfire when she felt someone come up behind her, reach between her legs, and put their hand on the outside of her vagina, over her clothing. She was surprised and immediately stood and turned around to see a man she recognized from the unit but whom she did not know. A.B. was stunned and turned away, believing that the accused had mistaken her for someone else.

 

3.      The accused approached her again from behind and put his hands on her hips. She then moved away from him and resumed trying to roast marshmallows.

 

4.      The accused then approached her again from behind, and again reached between her legs, and placed his hand on the outside of her vagina, over her clothing.

 

5.      A.B. then went around the fire to where Capt Ellen Johnston was located and asked for Capt Johnston’s help to keep the accused away from her.

 

6.      The accused approached them saying he would show the complainant how to roast marshmallows. Capt Johnston told him “No thanks, Art, we’re good” or words to that effect, after which the accused left them alone.

 

7.      Many members of the unit remained on the airfield overnight. The following morning during breakfast, A.B. saw the accused and asked a colleague who he was. The colleague identified him as a flight engineer Art Mason.

 

8.      A.B. decided to report the incident to the military police in June of 2021.”

 

Joint submission

 

[3]               In a joint submission, both the prosecution and defence counsel recommend that I impose a sentence of a fine in the amount of $4,200 combined with twenty-one days’ confinement to barracks.

 

[4]        The joint submission before the Court is reviewed in the context of the 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 proposed in a joint submission “unless the proposed sentence would bring the administration of justice into disrepute, or is otherwise not in the public interest”.

 

[5]        A plea bargain occurs when counsel come together, outside the court, to discuss their respective positions in a quid pro quo manner. There is give and take required to come to a joint recommendation. 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 an offender, Master Corporal Mason, who is clearly remorseful, to begin making amends. 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.

 

[6]        In the case of inappropriate sexual conduct, coming to a meaningful resolution with a joint submission significantly helps the healing process as it spares the victim from having to testify and be cross-examined on the incident. It also assists the defence in that the accused can assess his or her options for resolution earlier rather than later. In this case, Master Corporal Mason has assumed complete responsibility for his inappropriate conduct and that is very important.

 

[7]        In the case of the military justice system, the systemic benefits of joint submissions also extend to the unit. The accused's unit is responsible for providing the administrative support to both the member and the court martial. When that occurs, and matters can be dealt with quickly, the unit benefits directly.

 

[8]        The most important gain to all participants is the certainty that a joint submission brings to the process. The accused person has a lot to lose. As you heard when I did the verification of the guilty plea, by entering a plea bargain, the constitutional right to be presumed innocent is given up and this should never be done lightly. Thus, in exchange for making a plea, the accused must be assured a high level of certainty that the Court will accept the joint submission.

 

[10]      In order for the military justice system to be able to rely heavily on joint submissions emanating from plea bargains, the Court must have confidence that the negotiations are conducted in a manner that promotes and respects the rights of the accused. The submissions of both the prosecution and defence counsel have been clear that the negotiations for resolution began early and that they considered and weighed the risks with respect to both sides.

 

[11]      Further, as defence counsel acts exclusively in the accused’s best interest, he provided the Court confirmation that Master Corporal Mason’s plea was a voluntary and informed choice and unequivocally acknowledges his guilt.

 

[12]      As members of the legal profession and accountable to their respective law societies, both the prosecution and defence counsel have a duty not to mislead the Court in their submissions. As such, as the military judge presiding and being asked to consider a joint submission, I expect that both counsel will have fulfilled their professional responsibilities in their independent roles. In effect, they are in a better position than the Court to weigh and assess relevant factors, the evidence available, as well as the public interest.

 

Assessing the joint submission

 

[13]      In this case, the prosecutor read a Statement of Circumstances and provided the documents required at the Queen’s Regulations and Orders for the Canadian Forces article 112.51 supplied by the chain of command. The Statement of Circumstances was introduced on consent to inform the Court of the context of the incidents that led to the charges before the Court. Defence counsel also introduced an Agreed Statement of Facts regarding Master Corporal Mason that outlines the relevant personal facts pertaining to him so the Court can ensure that it delivers an individualized sentence specific to his circumstances.

 

[14]      Further, the Court benefitted from the submissions from counsel to support their joint position on sentence, highlighting the facts and considerations relevant to Master Corporal Mason.

 

[15]      Counsel’s submissions and the evidence before the Court have enabled me to be sufficiently informed of any indirect consequence of the sentence so I may impose a punishment adapted specifically to Master Corporal Mason’s circumstances and the offences committed.

 

Victim impact statement

 

[16]      I will begin with highlighting an important part of A.B.’s statement that I think we should all hoist in. She wrote:

 

“The ball started rolling, and in a way there was a small sense of relief. I told someone and they took me seriously. The relief was short lived, coming forward amplified the feelings of anxiety and worry. Before they were unrealized what ifs and unknowns, but coming forward started a chain reaction of which the end result is also unknown, but this time unknown with an impending end result. What will people say? Will they think of me differently? Will they talk about it behind my back? Will my crew walk on eggshells around me? I built up a respect and rapport with my crew, is it all going to come crashing down when I make my statement? Will he confront me at work?”

 

[17]      The above comments are repeated, in various ways, in almost every case that I preside over with respect to inappropriate sexual touching. It is not the actual incidents that cause the greatest stress on a complainant, but rather it is the effect of reporting it and the complainant’s perception of how they will be perceived that a complainant finds the most stressful.

 

[18]      A.B., you must know that by reporting the incidents, the bravery and the courage you displayed reflects your strength of character. Your chain of command listened to you and took your concerns seriously. I heard you today, as did Master Corporal Mason. By coming forward, you made a difference, and I hope you understand that.

 

[19]      We are trained to be strong, and we convince ourselves that the minor stuff does not affect us. However, as an institution, we must accept that the small stuff does matter. If we can control it, then the more serious misconduct will be pre-empted. The serious misconduct is easy to report, as there is no ambiguity. It is the minor misconduct, arising from cases where members can be rehabilitated, that are the most important to address.

 

[20]      We need committed members who are strong and willing to come forward to report even minor misconduct, so we can become better collectively as an armed force. It is important for everyone, including the offenders who also deserve the opportunity to rehabilitate themselves and correct their behaviour, and this must be done at the earliest opportunity.

 

[21]      As I noted in Master Corporal Mason’s comments, not only has he assumed complete personal responsibility, but he has also hoisted in the necessary message that flows from his failing on that day. He has sought assistance and now limits his consumption of alcohol.

 

The offender

 

[22]      Master Corporal Mason is forty-six years old. He enrolled in the Canadian Armed Forces (CAF) on 19 October, 2007, having served continuously for almost sixteen years. By all accounts, it appears that he served his country well and the Court received very positive feedback on his performance.

 

[23]      An Agreed Statement of Facts was introduced by defence that highlights those facts of importance to Master Corporal Mason. It reads as follows:

 

“1.       MCpl Mason joined the Canadian Armed Forces (CAF) in October, 2007 as an Aviation Technician (AVN Tech). He remustered to flight engineer in 2013.

 

2.         On the night in question, MCpl Mason had consumed alcohol and he has no independent recollection of the events that led to the charge in this matter. Despite his lack of memory, MCpl Mason admits that the events described in the Statement of Circumstances occurred.

 

3.         MCpl Mason has received various Letters of Appreciation throughout his career, in particular from the Chief of Defence Staff (CDS) for the support he provided during the Halifax multinational defence conference in November of 2012, from the Op Artemis ATF Commander while deployed in Kuwait in 2013, and from the 12 Air Maintenance Squadron (AMS) Commander for his work maintaining serviceable aircraft for various deployments and operations. He received additional letters of appreciation for his support to the BC wildfire efforts as part of Op Lentus in 2017 and again in 2021.

 

4.         MCpl Mason frequently supports social and sporting initiatives within the CAF. He was the first Corporal to be appointed PMC of the junior ranks mess in Shearwater from 2009 to 2011. He coached youth ball hockey in Shearwater from 2010-2012. He has participated in golf, hockey, and curling teams throughout his service.

 

5. In June of 2019, he received a certificate in recognition for achieving 1000 hours flying on the CH 146 aircraft.

 

6.         MCpl Mason was selected for promotion to Sgt in the last year, however the promotion was deferred due to this outstanding matter at bar. Whether he will be promoted this year is an open question at this time. Further, no decision has yet been made as to whether an Administrative Review or other administrative or remedial measures will be initiated.

 

7.         According to a friend and community member, Anika Van der Vink-Neri, MCpl Mason is a caring person who is quick to help friends in need. See attached reference letter, exhibit A to this ASOF.”

 

Objectives of sentencing to be emphasized in this case

 

[24]      The prosecution has emphasized that all the objectives of sentencing were considered, but both he and defence counsel felt that those of greatest importance in addressing this incident are deterrence (both general and specific) and denunciation which, on the facts before the Court, I agree with.

 

Parity

 

[25]      An important sentencing principle set out in the NDA at paragraph 203.3(b) stipulates that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. The prosecution and defence counsel provided the Court with several judicial precedents for comparison. They included the following: R. c. Bobu, 2021 CM 5007; R. v. Fields, 2022 CM 5003; R. v. MacKay, 2022 CM 5017; R. v. MacKenzie, 2021 CM 2011; and R. v. Brownlee, 2019 CM 2021.

 

[26]      Although the offence of sexual assault was withdrawn by the prosecution, the same factual underpinnings have been relied upon in the particulars for the charge of disgraceful conduct to which the accused has pleaded guilty.

 

[27]      As I mentioned in a recent decision of R. v. Levesque, 2023 CM 2001, notwithstanding the nature of the charge brought by the prosecution before the Court, the trial judge should ensure that a sentence imposed on similar offenders is comparable to similar misconduct notwithstanding the nature of the charge brought before the Court.

 

[28]     The CAF has made great strides in addressing allegations of inappropriate behaviour. However, the resolution of complaints and punishments awarded have often been scrutinized. Consequently, it is important that I remind all of you that judicial precedent requires trial judges to individually craft sentences based on the individual accused and the specific facts before the Court. Judges must not conflate all types of sexual misconduct into the same realm in the consideration for sentencing.

 

[29]      Sentences must be decided on the specific facts of the case before the Court and consider where the misconduct is situated on a scale of seriousness. At paragraph 106 of R. v. Cadieux, 2019 CM 2019, I wrote:

 

Institutional attempts to provide a one-size-fits-all response sentence are counterproductive and serve as a disincentive for anyone to step forward to report. We must all be cognizant of the fact that flexibility, discretion and good judgement are all key to eliminating harmful conduct. Importantly, it is imperative that any sentence imposed by the court reinforces the fundamental principle set out at paragraph 203.3(b) of the NDA that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”

 

[30]      Further, before imposing the more serious punishments, such as imprisonment or reduction in rank, trial judges must first assess whether lesser punishments would be appropriate to meet the sentencing objectives.

 

[31]      In the case of Levesque, I canvassed the broad range of sentencing imposed on offenders in both military and civilian courts for inappropriate sexual touching over the clothes. In short, the case law suggests that for these types of cases, trial judges regularly impose meaningful sentences other than imprisonment. Nonetheless, a sentence imposed for sexual touching over the clothing will be highly dependent on the aggravating and mitigating factors of the specific case.

 

[32]      Ultimately, the decision before me is whether, based on the facts of this case, the sentence proposed in the joint submission is in the public interest and will not bring the administration of justice into disrepute.

 

[33]      In making the joint submission, counsel advised the Court that they considered all relevant aggravating and mitigating factors and presented several factors for the Court’s consideration. The Court considered the following aggravating factors:

 

(a)               experience in the CAF. Master Corporal Mason ought to have known that his advances were not welcome. He had served in the CAF long enough to be aware of the appropriateness of this sort of touching, particularly in the context of a work place event;

 

(b)               violation of the physical integrity of A.B. Although the facts suggest they did not really know each other, A.B. was his colleague in arms, and she was deserving of his respect. By invading her physical integrity, he crossed a boundary that must always be protected;

 

(c)               repetitive nature of the touching. He engaged in repetitive attempts to touch the victim despite the clear indication that she was not interested; and

 

(d)               impact on the CAF and unit – requirement for respect – the incident itself reflects a lack of respect for his colleague. Not only did he exercise poor judgement by invading her personal space with inappropriate touching, but his actions also made her feel uncomfortable within the unit. He violated a fundamental tenet of trust that must exist between members serving together. Every one of us must ensure that our fellow members’ integrity and dignity are always respected and that they feel comfortable serving within their work environment. The type of conduct that he displayed had a clear detrimental effect on the work environment. When people are uncomfortable in their workplace, the CAF loses because we are not able to draw on everyone’s contribution.

 

[34]      The Court considered the following mitigating factors:

 

(a)               he’s a first-time offender. The offender has no conduct sheet or previous criminal record. This is the first disciplinary hearing of any type for him;

 

(b)               his guilty plea. Based on his actions and evidence before the Court, he genuinely shows remorse for the conduct. His guilty plea has helped the victim in that she does not have to testify, and it also avoids a lengthy trial; and

 

(c)               his potential for continued service in the CAF. The fact that he stepped forward and accepted responsibility, his heartfelt apology delivered to the victim and his strong work performance, despite his promotion being deferred, reflect his commitment to improve himself. Since learning of the allegations he has adjusted his own lifestyle and sought help. He has demonstrated the character of the type of person who can redeem himself and continue service in the CAF.

 

Any indirect consequences of the finding of guilty or the sentence should be taken into consideration

 

[35]      Pursuant to paragraph 203.3(e) of the NDA, both counsel made submissions on the indirect consequences of the finding and the sentence to be imposed. With the deferral of his promotion and the ongoing administrative review, he has already paid a huge price for his misconduct.

 

Final Comments

 

[36]      Master Corporal Mason, you violated one of the most important obligations of members of the CAF. The military ethos is clear and transparent. It demands the ultimate of respect and integrity of every member in everything we do. However, the Court also notes that you fully accepted responsibility for your conduct and that your admission of guilt is a sincere expression of remorse.

 

[37]      As a serving CAF member, I am conscious of the ongoing concerns of sexual harassment, inappropriate behaviour and sexual assault. It takes significant courage for a victim or complainant to come forward to his or her chain of command to report conduct that has made him or her feel uncomfortable.

 

[38]      We must all work together to ensure that the CAF offers a safe and respectful work environment for all its members. This task places special responsibility on the chain of command to ensure that harmful and inappropriate behaviour is stopped in its infancy.

 

[39]      The chain of command and prosecution must quickly respond to the full range of unacceptable conduct. A failure to address even the smallest instance of inappropriate behaviour is exactly what threatens and undermines the military ethos, values, norms and ethics expected of every CAF member.

 

Conclusion

 

[40]      After considering counsel’s submissions in their entirety and all the evidence before the Court, I must then ask myself whether the proposed sentence would be viewed by the reasonable and informed CAF member, as well as the public at large, as a breakdown in the proper functioning of the military justice system.

 

[41]      The joint submission before the Court recognizes that the charged misconduct must be addressed and resolved at the appropriate level. As I mentioned above, in imposing sentences, trial judges need to be particularly vigilant in ensuring that the sentence is appropriate for the individual offender and the facts before the Court.

 

[42]      I agree with counsel that, together, the fine of $4,200 combined with twenty-one days’ confinement to barracks will provide Master Corporal Mason with an excellent opportunity to reflect upon his actions while still contributing to his unit on an ongoing basis.

 

[43]      Section 93 of the NDA criminalizes conduct that is “shockingly unacceptable” and is punishable up to imprisonment for a term not exceeding five years, or to less punishment. Courts martial have historically found that facts akin to sexual misconduct fall within the realm of shockingly unacceptable conduct. The maximum sentence that exists for a section 93 offence is significant and reflects the seriousness of the offence. As I explained to Master Corporal Mason during the plea verification process, although the offence is an NDA offence, it is still captured within the Criminal Records Act, re-enforcing its seriousness on the spectrum of conduct.

 

[44]      Considering all the factors, the circumstances of the offences and of the offender, the indirect consequence of the finding and 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 recommended sentence is in the public interest and does not bring the administration of justice into disrepute.

 

FOR THESE REASONS, THE COURT:

 

[45]      FINDS Master Corporal A. Mason guilty of the first and only charge on the charge sheet.

 

[46]      SENTENCES him to a fine in the amount of $4,200, payable in monthly installments of $300 for fourteen months, combined with twenty-one days of confinement to barracks.

 

Counsel:

 

The Director of Military Prosecutions as represented by Major Reede

 

Major F.D. Ferguson and Lieutenant-Colonel A.H. Bolik, Defence Counsel Services, Counsel for Master Corporal A. Mason