Courts Martial

 

COURT MARTIAL

 

Citation: R. v. O’Dell, 2023 CM 5004

 

Date: 20230426

Docket: 202202

 

General Court Martial

 

5th Canadian Division Support Base Gagetown

Oromocto, New Brunswick, Canada

 

Between:

 

His Majesty the King

 

- and -

 

Corporal, S.H. O’Dell, Offender

 

 

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

 

Restriction on publication: Pursuant to paragraph 183.5(2)(b) of the National Defence Act, 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in these proceedings as the complainant, including the person referred to in the charge sheet as “A.B.”, shall not be published in any document or broadcast or transmitted in any way.

 

REASONS FOR SENTENCE

 

(Orally)

 

I. Introduction

 

[1]        Corporal (Cpl) O’Dell, was found guilty by a panel of a General Court Martial of one charge contrary to section 271 of the Criminal Code alleging that between 1 November and 22 November 2018, at or near Summerside, Prince Edward Island (PEI), committed a sexual assault on A.B. At the sentencing hearing, counsel proposed a joint submission, recommending that I impose a punishment of detention for a period of six weeks, or more precisely, that of forty-two days. Additionally, the defence sought a personal remedy regarding the application of the regime set out in the Sexual Offender Information Registration Act (SOIRA), contending that subsections 227.01(1) and 227.02(2.1) of the National Defence Act (NDA), which render the SOIRA regime applicable to military offenders, violate his rights protected under section 7 Charter rights, and that the provisions are not saved by section 1. The prosecution opposes the application seeking the exemption from the SOIRA regime. Thus, in addition to determining whether the joint submission is contrary to the public interest, the Court must decide if the offender should be exempt from the mandatory imposition of a SOIRA order.

 

Background

 

[2]        In deciding the appropriate punishment to impose, the Court must take into consideration the circumstances surrounding the commission of the offence. In this context, when a verdict of guilty is rendered by a panel of a General Court Martial, in accordance with subsection 203.5(2) of the NDA, the Court:

 

            (a) shall accept as proven all facts, express or implied, that are essential to the court martial panel’s finding of guilty; and

 

                (b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

 

[3]        If there is a dispute with respect to any fact that is relevant to the determination of a sentence, evidence may be adduced as provided for at subsection 203.5(1) of the NDA. In this case, there is no indication that there was a dispute on determination of the facts relevant to the consideration of a fair and fit sentence. Therefore, I have accepted as proven the following facts that were essential to the court martial panel’s finding of Cpl O’Dell’s guilt.

 

[4]        Exercise NIHLO SAPPER is a twenty-day long exercise conducted annually in November by 4 Engineer Support Regiment (4 ESR). In November 2018, six to eight troops from 1 Construction Engineer Regiment (1 CER), including the victim A.B., a brand-new sapper, went on temporary duty from Edmonton to Gagetown and PEI to augment the sections during the exercise. A.B. was the only female member of the high-risk search section composed of twelve to thirteen members. During the exercise, section members were paired for searches of explosive devices and trained to practice techniques learned. The 2IC was Master Corporal (MCpl) Scott, and the 3IC was then-Cpl MacLellan, whom A.B. met for the first time during the exercise.

 

[5]        During X-ray training, Cpl O’Dell was attached to A.B.’s section. She had a very brief first interaction with him. Cpl O’Dell mentioned to her during this interaction that he was an explosive ordnance driver. Later, during a building search tasking, when she was with her search pair, Cpl Chung from 1 CER, she had another interaction with Cpl O’Dell. There was a find, which implied that an improvised explosive device or other explosive devices were located. In accordance with the safety protocol, A.B. took cover in the nearby vehicle, a Cougar, and waited to receive the signal for the all-clear so she could leave the vehicle. Leaving the vehicle before receiving the all-clear would constitute a violation of the safety protocol. Cpl O’Dell went into the Cougar as well, but Cpl Chung did not follow. During the waiting period that lasted between five to fifteen minutes, the offender and A.B. were alone in the vehicle and had a brief conversation which ended when the all-clear signal was given.

 

[6]        A day or two later, A.B.’s section was given a 48-hour tasking in Summerside, PEI. Cpl Simon, a member of 4 ESR, was assigned as A.B.’s search partner for the duration of this tasking. While conducting the search of a building, A.B. and her search partner were informed of a find by another team. As a result, A.B. took cover in the nearby Light Armoured Vehicle (LAV). Cpl O’Dell was in the vicinity and took cover in the same LAV, entering first, followed by A.B., Cpl Simon and a fourth person unknown to A.B. The four section members entered using the hatch in the middle of the ramp because the ramp was shut. It was tight quarters inside the LAV because on the right side, on the floor at the back entry, there were duffle bags, search equipment, personal gear, bags of glow sticks, and coffee urns piled up and unsecured, which made the right-side bench not visible. Cpl O’Dell sat on the floor, while A.B. and the other members were seated on the bench.

 

[7]        During the ten to fifteen minutes that Cpl O’Dell was inside the LAV, A.B. put her head back with her feet up staggered slightly higher up on the equipment across the aisle in order to give Cpl O'Dell space, with her legs above the offender's general knee area. There was no physical contact between A.B. and the offender at that time. Cpl O’Dell then put his hand on her ankle, on top of her boots and asked if it was okay. She responded “yeah, whatever”. At that time, the other members were resting or “racking out”. While A.B. had her eyes closed, she felt a sensation, a light pressure from the inside of her knee, sliding all the way up to her genitals. This lasted one to two seconds. She did not feel the sensation lower because she was wearing mid-calf boots. She was startled. She leaned forward, opened her eyes, saw the palm surface of the four fingers of Cpl O’Dell’s right hand touching her genitalia, fingers pointing towards the ceiling. She pushed his hand off and whispered: “what the fuck are you doing?” to which he whispered back: “is that not okay”? She answered, still whispering: “why the fuck would it be okay?” She whispered because she saw the other members were either sleeping or resting with their eyes closed and she did not want them to be aware of what was going on, because she did not want them to perceive her as an object. She was embarrassed. The interaction ended when the all-clear signal was heard. Cpl O’Dell and A.B. left the vehicle as if nothing had happened.

 

[8]        In order to avoid too much disruption during the exercise, A.B. waited for the tasking to be completed before reporting the incident to the 3IC, now MCpl MacLellan who informed his superiors. Arrangements were made so A.B. would no longer work with Cpl O’Dell, as she requested.

 

[9]        Cpl O’Dell testified in support of his defence, denying the allegations. He claimed that it was A.B. who laid her foot on his genitals twice, and that he pushed her away. He also told the Court that after the all-clear, he grabbed A.B.’s thigh and the leg of another soldier on the other side of the vehicle in order to stand up to leave the LAV, which is a normal thing to do to. His testimony also contradicted A.B.’s testimony on some collateral aspects of the case regarding the layout of the LAV as well as who was in the LAV at the material time and where they were seated. He testified being allowed to walk around during cover, to get a breadth of experience with explosive ordnance disposal (EOD) personnel. His testimony did not align on some key aspects with his prior statement to the military police (MP). Cpl O’Dell contended that these discrepancies can be explained by the fact that he had years to reflect and now remembers the details he had omitted to mention during the investigation.

 

[10]      The other defence witness, MCpl MacLellan, is a long-time friend, colleague, and former employee of Cpl O’Dell. There were some discrepancies between his evidence in court and his prior statements to the MP. Cpl O’Dell’s testimony also contradicted certain aspects of his evidence as they related to safety protocol. After deliberation, the panel found Cpl O’Dell guilty of the charge of sexual assault.

 

II. Whether the joint submission is compliant with the public interest test

 

Position of the parties

 

[11]      I now turn to the position of the parties in support of the joint submission. The prosecution submitted that denunciation and general deterrence should be the objectives of Cpl O’Dell’s punishment to ensure that the fundamental purpose of sentencing is met. He contended that offences related to sexual misconducts have a greater impact on victims in the Canadian Armed Forces (CAF) particularly because trust is paramount as CAF members live and serve in close quarters. He considered as aggravating circumstances, the part of the body that was touched during the commission of the offence, although he recognized the conduct was at the lower end of the scale of gravity. Second, that the victim was in a vulnerable position; she was resting with her eyes closed when she was sexually assaulted. Further, the sexual assault occurred while on exercise. This had the effect of deterring the victim from reporting the misconduct immediately in order to avoid any operational disruptions caused by measures required to respond to the allegations. The prosecution also considered Cpl O’Dell’s post-offence conduct, in particular his false reporting of a sexual misconduct against the victim. Lastly, he considered the impact the sexual assault had on A.B.; in addition to the emotional and physical ailments she suffered as a result, Cpl O’Dell’s conduct had the effect of robbing the victim’s career from her because she no longer wants to serve in her current, dominantly male occupation. In mitigation, he considered that the offender has no conduct sheet. He further considered the offender’s decision to agree to a joint submission, which saved court time and resources. The prosecution recognized as indirect consequences, that the offender will be the subject of an administrative review.

 

[12]      Defence agrees with the submissions of the prosecution. He further explained that Cpl O’Dell’s direct chain of command has recommended Cpl O’Dell’s retention in the CAF, but acknowledged that the decision is not within its authority. He also explained that Cpl O’Dell’s career has stalled. This had a deterrent effect on him as well as on others. The offender has a solid network who supports him. He has been in a common law relationship for the past five years and they are planning to marry this August. His spouse constitutes a significant support system and minimizes risk of any possible offences in the future. Members of his unit are also part of this support system, as could be seen with members present in the courtroom supporting Cpl O’Dell. He also wants to continue serving in the CAF.

 

Sentencing principles of the military justice system

 

[13]      Turning to the applicable principles for the determination a fair and fit sentence, the Court must be guided by the sentencing principles contained in the NDA. As provided at section 203.1 of the NDA: “The fundamental purpose of sentencing is to maintain the discipline, efficiency and morale of the Canadian Forces.” The fundamental purpose shall be achieved by imposing just sanctions that have one or more of the objectives listed at subsection 203.1(2), such as deterrence, denunciation, 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.

 

[14]      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.”

 

[15]      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 and compliant with the sentencing principles. During their consideration of an appropriate sentence to recommend, counsel will often engage in resolution discussions. “Properly conducted, [these resolution discussions] permit the system to function smoothly and efficiently” (R. v, Anthony-Cook, 2016 SCC 43 at paragraph 1).

 

[16]      Joint submissions provide many benefits to the accused, the participants, the unit, and the criminal justice system because they save both time and resources. “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”” (Baptiste c. R. 2021 QCCA 1064 at paragraph 72).

 

[17]      The public interest is the test that courts martial are required to follow when dealing with a joint submission. The test dictates that a joint submission should not be departed from by the trial judge unless it 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 consider rejecting the recommended sentence.

 

[18]      It falls on the prosecution 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. Even in those circumstances, however, a joint submission serves to mitigate the stress associated with the uncertainty of the outcome on sentence for both the offender and the victim. It also saves 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.

 

[19]      When considering a joint submission, trial judges can rightfully assume that counsel were mindful of the sentencing principles when agreeing on the joint submission. It is also assumed 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.

 

Aggravating factors

 

[20]      In examining the joint submission, in addition to the nature and objective gravity of the offence, I have considered the circumstances surrounding the commission of the offence when determining whether the proposed punishment meets the public interest test. As a result, the following aggravating factors specific to this case were taken into consideration:

 

(a)               The harm caused to the victim as expressed in her victim impact statement: The sexual assault has caused the victim low self-esteem and hypervigilance around her peers. She no longer feels safe serving on exercises in the field, and no longer wants to engage with new troops in fear that her friendliness could somehow be misinterpreted, especially as she is generally the only female on taskings. She avoids afterwork events and has expressed not wanting to go on overnight taskings and field work. She felt deeply embarrassed to have to share the details of the allegations on several occasions to various male members of her chain of command and to the MP. Her experience as a witness at court martial exasperated her anxiety. She fears that continuing serving in her trade would be uncomfortable, especially where male members may feel differently about her following her reporting of the sexual assault. She is in the process of re-mustering to a trade where the gender ratio is more equal as she also no longer feels confident going on future deployments. Since the assault, she is in therapy. Cpl O’Dell’s conduct has caused the victim major depression, anxiety, stomach and bowel issues, and she is constantly clenching her jaw from stress, ailments that required medical interventions. She was also affected financially because she developed an addiction to shopping.

 

(b)               the vulnerability of the victim: She was a brand-new sapper. She was also the only female serving on the exercise. She knew only a few members on the exercise because she was one of six to eight augmentees from a Western unit. When Cpl O’Dell sexually assaulted her, she was in a confined space in close proximity to the offender and had her eyes closed.

 

(c)               the sexual assault occurred during an exercise. Sexual misconduct incidents occurring in the context when soldiers live, eat, serve and sleep in close quarters inevitably impact trust and unit cohesion. Further, the reallocation of personnel resulting from measures taken to separate the victim from the perpetrator would also have caused resources issues.

 

Mitigating factors

 

[21]      The Court also accepted counsel’s submissions regarding mitigating circumstances and took into consideration that the offender has no prior criminal convictions. The offender also accepted the prosecution’s recommendation on sentence, which does save time and resources as these proceedings are shorter.

 

The offender’s situation

 

[22]      The information contained in 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 is quite sparse. The documents nevertheless reveal that Cpl O’Dell is thirty years old. He has been in a common law relationship since 25 June 2019.

 

[23]      The offender enrolled in the regular force on 22 January 2016, promoted to his current rank in August 2018. Although the Member’s Personnel Record Résumé does not detail his service prior to joining the regular force, he testified that he did serve in the reserve force in 2009 for three months and in 2011 as part of a program for Aboriginal youth. After this evidence was received, the Court queried the defence regarding the requirement for a Gladue report. The defence responded that it was not required for this offender.

 

Attitude toward rehabilitation

 

[24]      Cpl O’Dell testified on sentencing and explained that before the allegations were reported in 2020, he was about to complete his EOD course and was going to do his Primary Leadership Qualification. He was on his way to becoming a MCpl. He is now a stores man, occupying a quartermaster position. Although he had no discussion with his chain of command about his future in the CAF, he expressed his desire to the Court to continue serving.

 

Other indirect consequences

 

[25]      I accept to consider as an indirect consequence of Cpl O’Dell’s finding of guilt, that he will be facing an administrative review to determine his fate in the CAF. That said, I also note that his chain of command has recommended his retention, which may be a consideration that goes in his favour. This is another factor that I need to take into consideration when examining the joint submission.

 

Parity

 

[26]      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 similar cases are useful to appreciate the kind of punishment that would be appropriate in Cpl O’Dell’s case.

 

[27]      The prosecution relied on the cases of R. v. Cadieux, 2019 CM 2019, R. v. Luis, 2022 CM 4016, which involves a subjectively more serious circumstances, R. v. Déry, 2013 CM 3025, R. v. Sutherland, 2023 CM 5001, and R. v. Bankasingh, 2021 CM 5009. I agree that this case shares the most similarities with Sutherland, a very recent case where a punishment of six-weeks detention was imposed. The sexual assault in the case of MCpl Sutherland occurred in very similar circumstances, while the ship was alongside in a foreign port. After a review of these precedents, the Court concludes that the proposed sentence 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.

 

Objectives

 

[28]      In light of the offence for which Cpl O’Dell was found guilty and in light of his personal circumstances, I accept that the fundamental purpose of sentencing shall be achieved by imposing a sanction that has for objectives in his case to deter him, as well as others, from adopting the same conduct, and to denounce unlawful conduct. I find that a sentence of incarceration of forty-two days would certainly meet the objectives of deterrence and denunciation.

 

Other ancillary orders

 

[29]      Since Cpl O’Dell 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 the offender pursuant to section 196.14 of the NDA.

 

[30]      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 because the sexual assault did not involve violence with a weapon and since the sexual assault was at the lower end of subjective gravity. I will not make an order to that effect.

 

Conclusion

 

[31]      Consequently, considering the circumstances of the commission of the offence, and the situation of the offender, I conclude that the joint submission of a punishment of forty-two days’ detention meets the public interest test.

 

III. Whether this offender should be excluded from the imposition of a SOIRA order

 

Position of the parties

 

[32]      Turning to the defence’s application seeking a remedy to exempt the offender from the mandatory imposition of a SOIRA order, the defence submitted a notice of constitutional question with a notice of motion seeking an exemption from the suspension of the declaration of invalidity of the SOIRA.  In his submissions, he contended that the offender does not pose a risk to reoffend and the SOIRA order would have a disproportionate impact on him. The impact of the SOIRA order is more serious on members of the CAF because they may be called on short notice to deploy domestically or internationally. This means they are required to report their whereabouts, causing additional hardship when they have little time to prepare to leave. Relying on R. v. Ndhlovu, 2022 SCC 38, he argued that there is no evidence that the SOIRA even serves its purpose. Consequently, the imposition of a SOIRA order to Cpl O’Dell’s case would be grossly disproportionate. As for the likelihood of reoffending, a psychological assessment is not necessary. The offender has a good support network, composed of his spouse, some of his peers and his chain of command recommended his retention. The offence occurred four and a half years ago, and he has not reoffended. Finally, the offence was at the lower end of gravity.

 

[33]      The prosecution opposes this application. Relying on the court martial case of R. v. Kohlsmith, 2023 CM 3002, he contended that the Court does not have discretionary authority to decide to exempt the offender from the SOIRA. He further contended that, should this Court decide not to follow the ruling in Kohlsmith, there is nevertheless insufficient evidence to prove that a SOIRA order would have a disproportionate and gross effect on Cpl O’Dell. Indeed, no evidence was adduced to show that the offender is scheduled to go on deployment, and he has remained in Gagetown since 2016. The prosecution is however primarily concerned with the lack of evidence regarding the low risk of recidivism; evidence of the offender’s matrimonial situation and alleged support network are not sufficient to prove that Cpl O’Dell is at a low risk of re-offending. Furthermore, his chain of command’s position to recommend his retention has a tenuous connection with the SOIRA application. The prosecution also raised the issue of his false allegations made to the MP accusing the victim of being the one who sexually assaulted him. Finally, the low gravity of the sexual assault cannot serve to be the only factor to determine whether the remedy should be imposed. In sum, the offender failed to meet his burden to prove that he is not at an increased risk to reoffend. Therefore, the remedy sought should not be granted. A SOIRA order should be imposed in the case of Cpl O’Dell.

 

The Law

 

[34]      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” in section 227, it shall make an order requiring the person to comply with the SOIRA for the applicable period specified in section 227.02. Through its reference to the definitions contained at paragraph 490.011 (1) (a) of the Criminal Code, paragraph (a) of 227 of the NDA includes sexual assault offences in the definition of “designated offence”. In short, when an accused person is sentenced for the commission of an offence of sexual assault, the general rule is that a SOIRA order shall be imposed. The purpose of that order is to make available information of convicted sexual offenders in order to help police investigate other offences. The statute does not provide discretion to the Court to decide whether or not an order should be imposed; an order shall be imposed in all cases.

 

[35]      In Ndhlovu, the Supreme Court of Canada (SCC) declared unconstitutional the Criminal Code provisions that are similar to those of the NDA SOIRA regime. The SCC has also ruled that the effect of its decision is suspended for one year, therefore the mandatory imposition of the order is still in force. In this case, the SCC granted a personal remedy to the appellant, exempting him from the suspension of the declaration. Thus, a SOIRA order was not imposed on him.

 

[36]      When such application is presented, the burden is on the offender to demonstrate that based on the facts of his case, the imposition of the SOIRA order is grossly disproportionate or bears no connection to the SOIRA’s purpose of assisting police in the prevention and investigation of sex offences. (see paragraphs 79 of Ndhlovu).

 

[37]      In the cases of Luis, Sutherland and R. v. Levesque, 2023 CM 2001, courts martial have recognized that the SCC decision in Ndhlovu is applicable mutatis mutandis to the NDA provisions and accordingly, the suspension in effect applies to section 227.01 of the NDA. In these three decisions, military judges granted a personal remedy to the offenders on the basis that both the circumstances of the offenders and of the offences, called for an exemption.

 

[38]      Conversely, in a subsequent court martial decision, Kohlsmith, the military judge considered the various decisions that were rendered across the country on this issue following Ndhlovu and concluded that there were two divergent interpretations of the SCC decision. He found that, similar to the decisions in Luis, Sutherland and Levesque, sentencing judges decided that they could use their judicial discretion to grant the remedy and exempt the offender from the SOIRA order while other courts ruled that Ndhlovu does not reinstate judicial discretion to consider not imposing the order. He further stated that:

 

[54] [The] difference in the Canadian courts’ understanding of the Ndhlovu’s decision is not surprising at all, as judges from some other courts in Canada experienced the exact same difficulty as the military judges in trying to interpret it.

 

[39]      Examining carefully the wording of the SCC’s ratio decidendi, the military judge in Kohlsmith sided with the second interpretation, concluding that “the Ndhlovu’s decision does not reinstate judicial discretion to determine anything on this issue to sentencing judges at trial level, except when an offender is convicted of more than one designated offence” (see paragraph 49 of Kohlsmith).

 

Analysis

 

[40]      While I agree with the ruling in Kohlsmith that the SCC in Ndhlovu did not reinstate discretion to trial judges to decide, on their own motion, whether to impose a SOIRA order when they are sentencing an offender, I believe that the SCC ruling did not preclude a sentencing judge from considering a Charter application to decide to grant a personal remedy when the applicable burden of proof is met by the applicant. Thus, I am of the view that I do have authority to grant a personal remedy when an application is submitted in this regard, if the offender demonstrated that, considering his situation, he should be exempted from the imposition of a SOIRA order.

 

[41]      However, considering the record and the evidence adduced at sentencing, I find that the offender failed to meet his burden of proof because little evidence was adduced to demonstrate that he is at a low risk of reoffending. While I agree that an assessment of a clinical and forensic psychologist is not always required to assess risks of recidivism, I was presented with little evidence on this aspect of the case. His service in the CAF, his matrimonial situation, the presence of some of his peers in the courtroom, peers who may or may not have attended to support the offender, and the fact that he is a first-time offender, are not sufficient to convince the Court that he presents a low risk of reoffending. Ultimately, the argument of Cpl O’Dell is that, by virtue of their military service, first-time CAF offenders in a marital relationship should automatically be granted an exemption. Accepting this contention would have the effect of relieving Cpl O’Dell from having to meet his burden of proof. While it is true that the offence was, subjectively, at the lower end of gravity, this is only one of many factors that I need to consider in order to determine whether this offender is at a low risk of reoffending. As confirmed in Ndhlovu, a risk assessment is an individualized exercise involving many variables. Having received little to no evidence on this aspect, I find that the offender did not prove on a balance of probabilities, that he should be exempted from the suspension of the declaration.

 

[42]      In sum, I do not have a sufficient evidentiary basis to grant Cpl O’Dell the remedy he is seeking based on the evidence presented at the sentencing hearing regarding his character and personal situation, in particular his risk of recidivism. Therefore, a SOIRA registration will be imposed for a period of twenty years, as required in the NDA.

 

IV. Conclusion

 

[43]      Having reviewed the documentary evidence introduced as exhibits and having considered counsel’s submissions, I find that counsel identified and considered the relevant aggravating and mitigating factors surrounding the commission of the offence, properly addressed the applicable principles and objectives of sentencing in this case. Consequently, I accept counsel’s position that the need for general and specific deterrence as well as denunciation are met with the proposed sentence. In short, in consideration of all the relevant factors of this case in applying the sentencing principles, the Court finds that the joint recommendation is not contrary to the public interest and would not bring the military justice system into disrepute.

 

[44]      Further, having considered the defence’s Charter application, I find that although I have authority to grant the remedy he is seeking, Cpl O’Dell did not meet the onus to prove, on a balance of probabilities, that he is not at an increased risk of reoffending. I will not, therefore grant the remedy.

 

FOR THESE REASONS, THE COURT:

 

[45]      SENTENCES Cpl O’Dell to detention for a period of forty-two days.

 

[46]      ORDERS, pursuant to section 196.14 of the NDA that the number of samples of bodily substances that are reasonably required be taken from Cpl O’Dell for the purpose of forensic DNA analysis by personnel of the military police from Canadian Forces Base Gagetown to be done immediately after the proceedings are terminated.

 

[47]      ORDERS Cpl O’Dell to comply with the Sex Offender Information Registration Act.

 

[48]      The sentence was passed at 1550 hours on 26 April 2023.

 

Counsel:

 

The Director of Military Prosecutions as represented by Major M. Reede.

 

Lieutenant(N) B. Wentzell, Defence Counsel Services, counsel for the offender, Corporal S.H. O’Dell.