Courts Martial

COURT MARTIAL

 

Citation:  R. v. McCabe and Gibson, 2010 CM 2008

 

Date:  20100604

Docket:  201026

 

Standing Court Martial

 

Canadian Forces Base Petawawa

Petawawa, Ontario, Canada

 

Between: 

 

Her Majesty the Queen

 

- and -

 

Leading Seaman J.D. McCabe and Corporal D.A. Gibson, Offenders

 

 

Before:  Commander P.J. Lamont, M.J.

 

 

REASONS FOR SENTENCE

 

(Orally)

 

[1]               Leading Seaman McCabe and Corporal Gibson, having accepted and recorded your pleas of guilty to the charge in the charge sheet, a charge of conduct to the prejudice of good order and discipline; that is to say, harassing behaviour contrary to DAOD 5012-0, this court now finds you both guilty of this offence.

 

[2]        It now falls to me to determine and to pass a sentence upon you.  In so doing, I have considered the principles of sentencing that apply in the ordinary courts of criminal jurisdiction in Canada and at courts martial.  I have, as well, considered the facts of the case as described in the Statement of Circumstances, Exhibit 19; and the other materials submitted during the course of this hearing; as well as the submissions of counsel, both for the prosecution and for the defence; and by you, Corporal Gibson, on your own behalf. 

 

[3]        The principles of sentencing guide the court in the exercise of its discretion in determining a fit and proper sentence in each individual case.  The sentence should be broadly commensurate with the gravity of the offence and the blameworthiness or degree of responsibility and character of the offender.  The court is guided by the sentences imposed by other courts in previous similar cases, not out of a slavish adherence to precedent, but because it appeals to our common sense of justice that like cases should be treated in similar ways.  Nevertheless, in imposing sentence, the court takes account of the many factors that distinguish the particular case it is dealing with, both the aggravating circumstances that may call for a more severe punishment and the mitigating circumstances that may reduce a sentence.

 

[4]        The goals and objectives of sentencing have been expressed in different ways in many previous cases.  Generally, they relate to the protection of society of which, of course, the Canadian Forces is a part, by fostering and maintaining a just, a peaceful, a safe, and a law-abiding community.  Importantly, in the context of the Canadian Forces, these objectives include the maintenance of discipline, that habit of obedience which is so necessary to the effectiveness of an armed force.

 

[5]        The goals and objectives also include deterrence of the individual so that the conduct of the offender is not repeated and general deterrence so that others will not be led to follow the example of the offender.  Other goals include the rehabilitation of the offender, the promotion of a sense of responsibility in the offender, and the denunciation of unlawful behaviour.  One or more of these objectives will inevitably predominate in crafting a fit and just sentence in an individual case, yet it should not be lost sight of that each of these goals calls for the attention of the sentencing court, and a fit and just sentence should reflect a wise blending of these goals tailored to the particular circumstances of the case.

 

[6]        As I told you when each of you tendered your plea of guilty, section 139 of the National Defence Act prescribes the possible punishments that may be imposed at courts martial.  Those possible punishments are limited by the provision of the law which creates the offence and provides for a maximum punishment.  Only one sentence is imposed upon an offender whether the offender is found guilty of one or more different offences, but the sentence may consist of more than one punishment.  It is an important principle that the court should impose the least severe punishment that will maintain discipline.

 

[7]        In arriving at the sentences in this case, I have considered the direct and indirect consequences for both the offenders of the finding of guilt and the sentence I am about to pronounce. 

 

The facts of the offence are not complicated and are set out in Exhibit 19, the Statement of Circumstances.  In brief:

 

While the two offenders were course candidates on their QL3 Medical Technician course between May and September of 2008, they repeatedly bullied and belittled four female course-mates by the use of insulting and degrading language directed, apparently, both directly to the victims, and in some instances to other persons, but concerning the victims. 

 

No explanation, much less any justification, was offered by either of the offenders for this behaviour, which in my view, falls squarely within the terms of DAOD 5012-0 entitled "Harassment Prevention and Resolution," and is therefore not to be tolerated in the Canadian Forces. 

 

The conduct of Leading Seaman McCabe extended to repeated touching of the buttocks of one of the female privates with his hand over her clothing.  And I find, therefore, that there was a sexual aspect to some of the harassing behaviour of Leading Seaman McCabe. 

 

[8]        The prosecution seeks a sentence for Leading Seaman McCabe of a severe reprimand and a fine in the amount of $4,000.  Defence counsel on behalf of Leading Seaman McCabe submits that a reprimand and a fine in the amount of $800 would be fit.  Corporal Gibson, who appeared without counsel and represented himself, did not suggest a specific sentence, but adopted the submissions made by defence counsel on behalf of Leading Seaman McCabe.  On the invitation of the court to address the point, all parties seem to agree that a sentence involving detention was not called for. 

 

[9]        There are seriously aggravated aspects of this offence.  Unlike all the previous cases of sentencing at court martial for this kind of offence that were referred to by counsel, there were multiple victims involved in the present case.  The conduct extended over a period of months until the complaints came to the attention of someone who finally did something about it. 

 

[10]      The effects of the offence upon the four victims varied but, in respect of all of them, were serious and contributed at least to some of the victims withdrawing from this career course.  One of them still has what she describes as a "great deal of fear and anxiety about being posted to a base" where Corporal Gibson might work.  Others have had to seek counselling to deal with the effects of this conduct upon them. 

 

[11]      Both offenders had the benefit of training in the area of harassment prevention and resolution; the lessons of which they apparently ignored.  But, in addition, the offender, Leading Seaman McCabe, was a qualified harassment investigator and advisor at the time of this offence.  And his clear duty was not only to refrain from this kind of conduct himself, but to prevent others such as his co-offender from doing the same. 

 

[12]      It is apparent that by virtue of their rank or their length of service or both, the two offenders were senior hands on this particular course in relation to the four female privates.  As such, they were expected to model the behaviour to be instilled in more junior members and, in this role, both of them fell woefully short of the standard expected of them. 

 

[13]      I acknowledge several mitigating factors:  both offenders have pleaded guilty, thus saving the victims the ordeal of reliving these events by testifying in court; Corporal Gibson, in particular, is well thought of by his superiors and his coworkers, and is making a valuable contribution in his trade as a medical technician; this is the first offence for both offenders whose service records was otherwise without blemish; as well, a substantial period of time has elapsed since the commission of the offence for reasons that have not been put before me, during which both offenders have apparently been well behaved.

 

[14]      On the other hand though, I have observed that Corporal Gibson, in particular, seems to have little insight into the gravity of this offence.  As in the course of his address to me, he described the reaction to the offence as "over dramatization."  He has not yet fully realized that harassing behaviour of the kind to which DAOD 5012-0 is directed, undermines the mutual confidence and respect that must characterize the personal relations among members of an effective armed force.  As I have noted in a previous case, harassing behaviour is the antithesis of respect and directly affects the ability of the Canadian Forces to fulfill its important tasks. 

 

[15]      I accept what is implicit in the submission of the prosecution that the different roles and behaviours of the two offenders justify a difference in the sentences to be imposed upon them.  I have given serious consideration to a sentence of detention for both offenders despite the positions taken before me.  This is a very close case.  If this offence has been brought before the court promptly or if there were evidence to support the conclusion that the defence was responsible for some substantial part of the delay in getting the case to court, then I can tell you that both of you would be going to Edmonton today.  I know that both of you know exactly what I mean by that.

 

[16]      Leading Seaman McCabe, you are sentenced to a severe reprimand and a fine in the amount of $4,000.  The fine is to be paid in monthly instalments of $400 each, commencing 1 July 2010 and continuing for the following nine months.  In the event you are released from the Canadian Forces for any reason before the fine is paid in full, the then outstanding unpaid balance is due and payable the day prior to your release. 

 

[17]      Corporal Gibson, you are sentenced to a severe reprimand and a fine in the amount of $3,000.  The fine is to be paid in monthly instalments of $300 each, commencing 1 July 2010 and continuing for the following nine months.  In the event you are released from the Canadian Forces for any reason before the fine is paid in full, the then outstanding unpaid balance is due and payable the day prior to your release. 

 

Counsel:

 

Major S.A. MacLeod, Canadian Military Prosecution Service

Counsel for Her Majesty the Queen

 

Lieutenant(N) M.P. Létourneau, Directorate of Defence Counsel Services

Counsel for Leading Seaman J.D. McCabe

 

Corporal D.A. Gibson, 2 Field Ambulance Petawawa

Representing himself