Courts Martial

Citation: R. v.  ex-Leading Seaman B.V.P. Sharp, 2008 CM 1004

Docket: 200746

STANDING COURT MARTIAL

CANADA

ONTARIO

CANADIAN FORCES BASE 8 WING TRENTON

Date: 28 February 2008

PRESIDING: M.  DUTIL, C.M.J.

HER MAJESTY THE QUEEN

v.

ex-LEADING SEAMAN B.V.P. SHARP

(Offender)

SENTENCE

(Rendered orally)

Introduction

[1]                    Ex-Leading Seaman Sharp was found guilty after a trial of the first charge for an offence punishable under section 130 of the National Defence Act; that is to say, assault with a weapon contrary to paragraph 267(a) of the Criminal Code.  The court has also accepted and recorded a plea of guilty to an offence laid under section 129 of the National Defence Act for conduct to the prejudice to good order and discipline.  The court now finds you guilty of that offence which consists of the third charge of the said charge sheet.

[2]                    The facts supporting these charges arose from a series of events that occurred at around 1715 hours on 12 November 2006 at 8 Wing Trenton in the military police headquarters where Corporal Esser and Leading Seaman Sharp, at the time patrol partners, had just returned from their work shift.  This was the last shift of Leading Seaman Sharp who was retiring from the Canadian Forces.  Briefly, the evidence heard at trial and reduced in writing in the statement of circumstances indicates that Corporal Esser and ex-Leading Seaman Sharp were returning from their patrol shift which was, in fact, the last shift of Leading Seaman Sharp as a military police person and member of the Canadian Forces because he was taking his voluntary release in order to be a full-time foster parent at the time.

[3]                    At shift change, Leading Seaman Sharp was very excited and happy.  He was smiling, dancing, and joking around.  Once in the military police building, he removed his OC spray canister from his belt and asked his dispatcher, Mrs Preston, if she had ever experienced pepper spray and asked her jokingly to spray some in her mouth while stepping towards her, to which she replied no.  He asked her again and she gave him the same definite no covering her face with her hands.  Leading Seaman Sharp asked a third time and she kept covered until she heard him walk away.  At no time did she feel threatened in any way by Leading Seaman Sharp’s conduct.  Before she left the building she started coughing and her throat felt dry.  A door and windows were opened and a fan was turned on to move fresh air in the room.

[4]                    As it was shift change, Corporal Esser walked through the MP squadron on her way to gun down.  After walking past Leading Seaman Sharp she felt a wet sensation on her buttocks.  She suspected that her partner, Sharp, had used his OC spray on her, she giggled and kept walking.  The first blast lasted less than one second.  She then felt another short blast that she described as a mist that touched her on the palm of her right hand.  The second blast was shorter in duration than the first blast.  She then turned around and made a comment to the effect that she would better wash her hands before rubbing her eyes and she continued walking away towards the stairs.  She was hit a third time by a quick blast from Leading Seaman Sharp’s OC spray canister that touched her on the side of her right hand, more precisely on her pinkie finger.  She started coughing and her throat was burning. She turned around and told him to stop when she may have given him a bad look at the time.  Leading Seaman Sharp stopped spraying her.  Her symptoms quickly disappeared once she got outside the building although the burning sensation on her right hand continued for another three to four hours.  She said at trial that it was not painful, but annoying.  Once outside she was met by a commissionaire, Mr Sadler, who complained that his eyes, nose, and throat had started burning.  He returned inside after ten minutes.  His eyes bothered him until 2000 hours and that until persons from the fire department helped him to flush his eyes. Corporal Esser said during the trial that she felt that it was a joke although she didn’t like to be the butt of a practical joke.  She added that, according to her, it was not an assault, but simply a bad joke.  She never lodged any complaint with regard to the actions of her patrol partner.

[5]                    Leading Seaman Sharp, at the time, had been trained on how to properly use pepper spray and when to use it.  He knew that military police persons ought to use OC spray only in accordance with the military police use of force continuum, although the evidence at trial supports the argument that it may have been sprayed in the gun vault as a practical joke on previous occasions, although Warrant Officer, who testified during the sentencing procedure, was not aware of such practice.  The evidence revealed as well that it was common that military police personnel played practical jokes on their colleagues, but most often in terms of inappropriate emails and graffiti.

[6]                    The purpose of a separate system of military tribunals is to allow the armed forces to deal with matters that pertain directly to the discipline, efficiency, and morale of the military.  The Supreme Court of Canada has recognized that breaches of military discipline must be dealt with speedily and frequently punished more severely than would be the case if a civilian engaged in similar conduct.  However, the punishment imposed by any tribunal, military or civil, should constitute the minimum necessary intervention that is adequate in the particular circumstances.  Sentencing is an individualized process.

[7]                    In determining sentence, the court has considered the circumstances surrounding the commission of the offences as revealed by the evidence heard during the trial and the statement of circumstances, the documentary evidence provided to the court, as well as the testimony of WO Clausio heard during the sentencing procedure.  I have also considered the submissions made by counsel including the case law provided in support.  This court has examined the evidence in light of the applicable principles of sentencing, including those set out in section 718, 718.1, and 718.2 of the Criminal Code when they are not incompatible with the sentencing regime provided under the National Defence Act.

[8]                    When a court must sentence an offender for offences that he has committed, certain objectives must be pursued in light of the applicable sentencing principles.  It is recognized that these principles and objectives will slightly vary from case to case, but they must always be adapted to the circumstances and to the offender.  In order to contribute to one of the essential objectives of military discipline; that is, the maintenance of a professional and disciplined armed force that is operational, effective, and efficient within a free and democratic society, the sentencing principles and objectives could be listed as:

Firstly, the protection of the public, and, of course, this includes the Canadian Forces;

Secondly, the punishment and the denunciation of the unlawful conduct;

Thirdly, the deterrence of the offender and other persons from committing similar offences;

Fourthly, the separation of offenders from society, including from members of the Canadian Forces where necessary;

Fifthly, the reformation or rehabilitation of offenders;

Sixthly, the proportionality to the gravity of the offence and the degree of responsibility of the offender;

Seventhly, the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

Eighthly, an offender should not be deprived of liberty if less restrictive punishment or combination of punishments may be appropriate in the circumstances; and

Finally, the court shall consider any relevant aggravating or mitigating circumstances relating to the offences or to the offender.

[9]                    I agree with both counsel that the protection of the public must be achieved by a sentence that will emphasize general deterrence.  However, I agree with counsel for defence that the case law provided by counsel for the prosecution are of very little relevance and assistance considering the unique circumstances of this case and the extremely minor threshold that led to the conviction on the first charge; that is, assault with a weapon. 

Aggravating Factors

[10]                  In arriving at what the court considers a fair and appropriate sentence, the court has considered the following mitigating and aggravating factors.  The court considers as aggravating:

First, your status as a military police person and the standard of conduct expected of police personnel.  Although the evidence indicates that you were not the best military police person and that, in your own opinion, this was not the right occupation for you, you knew or ought to have known  what is expected of a military police person.  Playing jokes on colleagues is part of maintaining morale and esprit de corps; however, they must stay within proper limits not to have the opposite effect.  Playing practical jokes using a weapon, whether it is a firearm or OC spray is simply not tolerable, even more so when the person making the practical joke is there to uphold the law.

Second, the objective gravity of the offence under paragraph 267(a) of the Criminal Code.  This is an offence that is liable to imprisonment for a term not exceeding 10 years as an indictable offence or 18 months on summary conviction.  There is also the offence under section 129 of the National Defence Act that is punishable to a maximum punishment of dismissal with disgrace from Her Majesty’s service.  So those are serious offences.

Mitigating Factors

[11]                  The court considers that the following circumstances mitigate the sentence:

First, the facts and the circumstances of this case.  Subjective gravity of the offence of assault with a weapon must be viewed as one of the lowest possible levels for this type of offence.  It is truly and rightfully the offence laid under section 129 of the National Defence Act for conduct to prejudice to good order and discipline that captures the profound nature and context of the events that led to these proceedings.  Having heard all the evidence at trial, which is not the case for the prosecutor who preferred the charges, I fully understand the remarks made by the referral authority in his letter dated 18 April 2007, according to the admission made by the prosecution at Exhibit 11, that although the charge for assault with a weapon might have been founded, he was of the view that the member’s action did not warrant the charge being laid.  He added that he felt that the member’s practical joke was reckless, it was not motivated by spite.  He completed his remarks by stating that in his opinion the interests of justice and general deterrence would be accomplished by proceeding on the second and third counts. Based on the evidence before this court, I must say that the referral authority’s approach was supported by the facts and the sense of fair justice as opposed to purely technical or legalistic approach.  That is not to say that the exercise of prosecutorial discretion to do otherwise in this case was not proper.  It may well be that it was based on a variety of important additional elements and policy considerations that warranted the decision to lay a charge of assault with a weapon, however, this court has not been made aware and does not have to be made aware of these reasons.  The court can only sentence the offender based on the applicable sentencing principles and objectives and the particular circumstances of the offences and of the offender.    

Second, I retain as mitigating in this case your plea of guilty on the third charge and the notice of that plea of guilty to the prosecution at the earliest opportunity. Your testimony at trial confirmed that you accepted responsibility for your actions and that you were remorseful for your behaviour.  It was certainly a serious lack of judgement on your part and a sign of immaturity, but I hope that you will put this experience behind you and move on.  There is no doubt in my mind that you are and will continue in the future to be an extremely important asset in your community.                    

Third, your social dedication, first, to abandon your employment in order to become a full-time foster parent for autistic children.  This is highly commendable and I consider this an important element of good character and profound social values.

Fourth, your age and your family situation.  You and your wife will be parents of your own child in the next few months and continue, hopefully, to provide care and love to children as their foster parents.

Fifth, the fact that you did not have a conduct sheet or criminal record related to similar offences.

And finally and sixthly, the delay since the laying of the charges.

[12]                  The court also recognized the direct and indirect consequences that the findings and the sentence will likely have on you.  Although you have voluntarily been released from the Canadian Forces and remain a member of the Supplementary Reserve, you will now have a criminal record under the Criminal Records Act.  The prosecution asked the court to sentence you to a reduction in rank accompanied with a substantial fine to ensure general deterrence.  However, she justified the most severe punishment of reduction in rank, stating that it would have no real effect on you in the circumstances, but on others.  I disagree with the approach.  The punishment of reduction in rank is simply too severe in the specific circumstances of this case.  As I said earlier, the court recognizes the requirement for general deterrence, in particular for offences committed by persons whose duty it is to enforce the law.  However, the facts and circumstances are such that the suggested sentence would be unduly harsh and completely remove the offences from their own context which places them at the lowest degree of what constitutes an assault with a weapon with regard to the first charge and a serious breach of police procedures with regard to the third charge for conduct to the prejudice to good order and discipline.  The sentence should not unduly stigmatize you and not send a distorted message to society as to the exact nature of your misconduct.

[13]                  The court considers that the fact that you had to face this court martial has already had a deterrent effect on others who would be tempted to commit similar offences.  It means that any unlawful use of force with a service weapon, even as a joke, is taken very seriously and will be dealt with accordingly.  The court is very confident that you will not appear before a court for a similar or any other offence in the future and the sentence will reflect this conclusion.

[14]                  Therefore, ex-Leading Seaman Sharp, the court sentences you to a reprimand and a fine of $1,000.  Should you be conviction free for a period of three years, you will be able to file an application to the National Parole Board for a pardon under the current regime provided under the Criminal Records Act as for anyone who would have been convicted of an offence punishable on summary conviction by a civil court having criminal jurisdiction in Canada.

                                                                                                      Colonel M. Dutil, C.M.J.

Counsel:

Major S.A. MacLeod, Directorate of Military Prosecutions

Counsel for Her Majesty The Queen

Lieutenant-Commander J.M. McMunagle, Directorate of Defence Counsel Services

Counsel for ex-Leading Seaman Sharp