Courts Martial

 

COURT MARTIAL

 

Citation:  R v Watts, 2013 CM 2006

 

Date:  20130220

Docket:  201207

 

General Court Martial

 

Mewata Armoury Calgary

Calgary, Alberta, Canada

 

Between: 

 

Her Majesty the Queen

 

- and -

 

Major  D.W. Watts, Offender

 

 

Before:  Commander P.J. Lamont, M.J.

 

 

REASONS FOR SENTENCE

 

(Orally)

 

[1]               Major Watts, in accordance with the findings of the panel of this General Court Martial you have been found guilty, contrary to your pleas, on three charges:  a charge of unlawfully causing bodily harm and two charges of negligently performing a military duty imposed on you. 

 

[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 disclosed in the evidence heard during the trial and the other evidence and materials submitted during the course of the sentencing hearing, as well as the submissions of counsel, both for the prosecution and for the defence.

 

[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 the crafting of a fit 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 sentence should reflect an appropriate blending of these goals tailored to the particular circumstances of the case.

 

[6]        Section 139 of the National Defence Act prescribes the possible punishments that may be imposed at court 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 sentence in this case, I have considered the direct and indirect consequences for the offender of the findings of guilt and the sentence I am about to pronounce.

 

[8]        The panel of this General Court Martial made findings of guilty against Major Watts on three charges as follows: 

 

            (a)        unlawfully causing bodily harm contrary to section 269 of the Criminal Code.  In that he, on or about 12 February 2010, at or near Kan Kala, Afghanistan, while commanding 2 Platoon, Stabilisation Company A, did unlawfully cause bodily harm to Sergeant Mark McKay, Master Corporal William Pylypow, Corporal Wolfgang Brettner and Bombardier Daniel Scott;

 

            (b)        and two charges of negligently performing a military duty imposed upon him.  In that, at the same time, while present during a range practice being conducted by his subordinates, he failed to order a stop to the live firing of the Defensive Command Detonated Weapon C19, as it was his duty to do, until all of his subordinates were either under cover or withdrawn from the danger area;

 

            (c)        and secondly, he permitted his subordinates to train on the live Defensive Command Detonated Weapon C19 without ensuring, as it was his duty to do, that training on inert or practice weapon systems had first been successfully completed. 

 

[9]        The panel made findings of not guilty on three other charges:  a charge of manslaughter in relation to the death of Corporal Joshua Baker; and two charges of breach of duty in relation to explosives contrary to section 80 of the Criminal Code.  I mention this because my duty under Queen's Regulations and Orders, article 112.54, is for sentencing purposes, to accept as proven all the facts, express or implied, that are essential to the findings of the panel and to find any other relevant facts disclosed by the evidence during the trial that are consistent with the findings of the panel.

 

[10]      Most of the facts in this case were either expressly admitted by the parties or were not really contested and the issues for determination by the panel principally revolved around whether, on the facts that they found, Major Watts was negligent in such a degree as to warrant findings of guilty. 

 

[11]      The facts are as follows:  On 12 February 2010, Major Watts was the commander of 2 Platoon, Stabilisation Company A (Stab A), holding the rank of captain.  He was under the command of then Major Lunney, the officer commanding Stab A.  Warrant Officer Ravensdale was the second in command of then Captain Watts' platoon. On that date, 2 Platoon conducted a range practice at Kan Kala, Afghanistan using a number of infantry weapons.  One such weapon was the Defensive Command Detonated Weapon C19, a directional anti-personnel mine known among the soldiers as a claymore. The C19s were placed in the ground between 25 and 31 metres from the firing points, that is, the location of the individual soldier who detonates the explosion. A C19 detonated by Corporal Brettner killed Corporal Joshua Baker and seriously injured four other members on the range, including Corporal Brettner. While all members of Stab A had completed all mandated individual battle task standards before deploying to Afghanistan, the C19 weapon system was not included in the pre-deployment training.

 

[12]      A number of short videos taken by some of the soldiers at the range that day were introduced into evidence.  In the videos, one can see that the range itself was held in the desert with a mountain to the north and other hills in the distance. The range was broken up into separate areas for different weapons and weapon systems along a line facing the mountain.  More or less in the centre of the line, the platoon light armoured vehicles were set up, also facing north, in order to practice the LAV weapons on the range. 

 

[13]      The range for the C19s was to run at the conclusion of the other weapons ranges. Warrant Officer Ravensdale briefed some of the soldiers in preparation for the firing of the C19s. The weapons were fired in serials of two detonations each. Corporal Brettner fired in the second position on the third serial. Some of these explosions, and the positions of some of the soldiers in relation to the explosions, can be seen in the videos. While some soldiers took cover behind the LAVs when the C19s were fired, it is obvious that not all of them did, and not just the soldiers who were injured or killed.  Many were well within the area of risk denoted on the Training Safety Manual of 100 metres behind the C19 firing point.

 

[14]      Major Watts (Captain Watts at the time of these events) gave evidence.  I accept his evidence on factual matters as truthful on the important points.  He trained and was commissioned as an armoured reconnaissance officer in the Reserve Force with the King's Own Regiment in Calgary.  He volunteered for deployment in Afghanistan and joined Task Force 3-09 in February of 2009 as the commander of 2 Platoon for work-up training prior to deployment.  Over the course of his career and when he deployed, he had had training on a number of weapons, including the LAV remote weapon system, but had not trained on the C19.  He was not field firing qualified. 

 

[15]      During the deployment, his platoon was heavily involved in regular patrols in Kandahar City.  As part of his duties, he understood that he was to train his soldiers on the range regularly on orders from Major Lunney. 

 

[16]      Some days prior to 12 February at meetings of senior people in Stab A, including Captain Watts, the idea was advanced by Warrant Officer Ravensdale that the platoon should be trained on the C19 weapon in order to better prepare the soldiers for patrols of a rough area of Kandahar City.  Warrant Officer Ravensdale had recently joined the platoon after the platoon had taken casualties. Major Lunney approved the idea, although Captain Watts told him that he, Captain Watts, was not qualified on the C19.  Captain Watts relied upon Warrant Officer Ravensdale to conduct the C19 portion of the range as he understood that Warrant Officer Ravensdale was highly qualified as "Advanced Pioneer", and Warrant Officer Ravensdale appeared to Captain Watts to have the confidence of Major Lunney.

 

[17]      At the range, Captain Watts was in charge of the LAV firing.  He was never told that he had safety responsibilities for the range overall.  A night or two prior to the range, he did some research about the C19 and found the reference to the template on page 2AK-1 of Exhibit 17, the Training Safety Manual.  The template diagrams the set-up of the C19 weapon and shows the direction of fire, the "danger area", the "lethal zone", and the "prohibited zone", all in relation to the firing point.  He did not see Exhibit 42, the pamphlet dealing with the C19 that describes in some detail the capabilities, set-up and firing procedure for the weapon. 

 

[18]      On 12 February, he issued patrol orders to 2 Platoon for the road move to Kan Kala and commanded the patrol of his platoon out to the range, checked for pattern of life downrange, and obtained an airspace restriction.   He obtained permission for the range to go live and passed that permission to his subordinates.  Warrant Officer Ravensdale gave a detailed range brief.  During the range practice, Captain Watts immediately supervised his LAV crew and took part in the firing of those weapon systems.  At the time Corporal Brettner fired his C19, Captain Watts had completed his firing of the LAV weapons and was being instructed by one of his soldiers on the C19.  He believed his soldiers and the senior non-commissioned members of his platoon, as infantry soldiers, were trained and familiar with the C19 and nobody seemed to have any concerns about safety.

 

[19]      The prosecution submits that a fit sentence in this case is imprisonment for a period of 18 months and dismissal from the Canadian Forces.  In addition, the prosecution seeks a weapons prohibition order for a period of five years.  It is argued that the facts in this case show an abdication of responsibility on the part of the offender for the safety of the soldiers under his command directly leading to very serious injuries to four of his soldiers and the death of one of his soldiers.  It is said that the offender failed to familiarize himself with the weapon in order to be aware of the risks posed to his soldiers, although resources were immediately available to him through the expertise of his second-in-command, Warrant Officer Ravensdale, and the written publications dealing with the C19.  Although the offender had seen the template for the C19 in the Training Safety publication, he failed to ensure that his soldiers were either outside of the danger area or under cover and failed to ensure that his soldiers had been previously trained on practice C19s before live firing, as required by the Training Safety Manual.

 

[20]      It is often said, and much more often left unsaid, that the job of a sentencing judge is a difficult one.  It is by no means any easier in a case such as the present case that involves penal negligence, where the terrible consequences of the offences may seem, from some points of view, to be out of proportion to the degree of fault.  The judicial mind readily grasps the relationship between a conscious and intentional act of brandishing a bladed weapon at an adversary, for example, and the resulting serious injury or death, and can accordingly measure the blameworthiness of the act in all the circumstances.  It is much more difficult to measure blameworthiness when dealing with a case such as the present case that is concerned with what the offender should have done but failed to do.

 

[21]      I have concluded that the sentencing position of the prosecution is too severe and for two main reasons.  In the first place, the case authorities to which I was referred by counsel for the prosecution do not support a disposition by way of imprisonment.  In the case of R v Major Paik, a sentence of reduction in rank to lieutenant and a severe reprimand was imposed upon the offender for one charge of negligent performance of a military duty arising out of the death by electrocution of a soldier while constructing a shed in Bosnia.  The offender made several errors of judgment that exposed the soldier to what was described as an obvious safety hazard.  His subordinate, Captain Ives, pleaded guilty to one offence of negligent performance of a military duty arising out of the same incident.  His conduct was said to be a contributing but not the sole cause of the death, and the degree of his negligence could not be described as borderline or minimal.  He was sentenced to reduction in rank to lieutenant, a severe reprimand and a fine of $3000. 

 

[22]      In the case of Major Hirter, the offender was found guilty of three offences of negligent performance of a military duty and one offence of conduct to the prejudice of good order and discipline arising out of an improperly conducted live fire range practice that resulted in the death of a soldier.  Major Hirter was sentenced to reduction in rank to captain and a severe reprimand and on appeal to the Court Martial Appeal Court, the sentence was affirmed. While other case authorities from civilian courts dealing with the sentencing for various kinds of negligence offences were also submitted, I do not find those cases particularly helpful in arriving at a sentence in this case.  

 

[23]      I have also considered two case authorities from the Court Martial Appeal Court that were not referred to by either counsel.  Both arose out of the torture and death of a Somali civilian who was taken into the custody of Canadian soldiers in March of 1993 during Operation Deliverance.  Sergeant Boland was the section commander who failed to prevent the mistreatment of the prisoner in his presence by soldiers in his section.  He pleaded guilty to one offence of negligent performance of a military duty and his sentence of 90 days' imprisonment, imposed by a General Court Martial, was raised to twelve months' imprisonment on the appeal of the prosecution to the Court Martial Appeal Court (CMAC-374, decided May 16, 1995). 

 

[24]      In a related case, Major Seward gave the order that prisoners could be abused that resulted in a general breakdown of discipline, culminating in the torture and death.  For his offence of negligent performance of a military duty, the sentence at trial of a severe reprimand was raised on appeal to the Court Martial Appeal Court to three months imprisonment and dismissal from the Canadian Forces (CMAC-376, decided May 27, 1996).

 

[25]      In the second place, I consider the sentencing position of the prosecution to be inconsistent with the position taken by the prosecution in the case of Major Lunney.  Major Lunney pleaded guilty before me to one charge of negligent performance of a military duty.  The agreed facts for sentencing purposes disclosed that Major Lunney failed to ensure that his subordinate, Captain Watts, was properly qualified on the C19 by reason of training or experience in order to be appointed as the officer in charge of a range practice.  The court was referred to the Operation Training Safety Manual, which states, among its principles: "Weapons and weapons systems shall never be placed in charge of personnel who are not qualified on the weapon or weapon system, except for the purpose of safeguard, transport or storage".  In the case of Major Lunney, counsel for the prosecution joined with the defence in recommending a sentence of reduction in rank to captain and a severe reprimand and on September 13th, 2012, at Asticou, I acceded to the joint submission and imposed the recommended sentence.

 

[26]      I have already referred to the sentencing principle of parity.  It is captured in section 718.2(b) of the Criminal Code.  I quote: 

 

A court that imposes a sentence, shall also take into consideration the following principles: 

…

(b)  a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

 

[27]      The principle now codified in section 718.2(b) has been the law for many years prior to codification.  For example, the Nova Scotia Court of Appeal stated in R v Chisholm, (1985), 18 C.C.C. (3d) 518 (at page 529).  I quote: 

 

Sentencing is of course an inexact science involving a blend of many factors with aims that often conflict and competing interests that can not always be harmonized.  Generally speaking, however, a court should try to make its sentence conform with that imposed on a co-accused for the same offence by some other court.  The reason, of course, is more than just to achieve equality of treatment.  Similar sentences under such circumstances avoid bitterness and resentment that otherwise might be harboured by the recipient of the more severe sentence - such feelings or sentiments can lessen the chances of rehabilitation.  Sentences imposed upon a co-accused that appear to be totally inadequate or excessive should be ignored.  The point simply is that if all the relevant circumstances are similar the sentence imposed upon an accused and his co-accused should be the same.

 

 [28]     More recently, in R v Mann, decided by the Ontario Court of Appeal on May 10th, 2010, the court, speaking through McPherson J, stated at paragraph 17: 

 

While parity is a guiding principle of sentencing, it is not, as stated by this court in R v Miller (J.) (2002), 163 O.A.C. 63, at para 9, to be applied in an absolute fashion:  "parity is only one of a number of principles that must be taken into consideration in imposing an appropriate sentence, and it cannot in and of itself dictate the result in all cases involving similar offenders committing similar crimes."  In R v L.M. [2008] 2 S.C.R.163, at para 36, the Supreme Court of Canada expressed a similar view:  "Owing to the very nature of an individualized sentencing process, sentences imposed for offences of the same type will not always be identical.  The principle of parity does not preclude disparity where warranted by the circumstances because of the principle of proportionality. (emphasis in original, and see R v Ipeelee, 2012 SCC 13, per LeBel J at para 79).   

 

 [29]     Since the offences of both Major Lunney and Major Watts arise out of the same facts, there are, of course, some similarities.  Both officers are guilty of negligence offences committed in connection with weapons range training in an operational context that resulted in serious consequences. But there are also important differences between the cases of Major Lunney and Major Watts.  Major Lunney pleaded guilty to one charge only, whereas Major Watts was found guilty after trial of two offences of negligence and a charge of unlawfully causing bodily harm to four soldiers as a result of his negligence.  Both officers were on-site at the time of the range practice, although for different purposes.  Major Lunney was there to exercise the members of his staff and, although he out-ranked him, he correctly sought permission from a senior non-commissioned member before going live.  Major Watts, on the other hand, was directly responsible for the safety of all of the soldiers in his platoon, whether Major Lunney was present or not.  Nevertheless, I am not persuaded that the differences between the cases of Major Lunney and Major Watts support the wide disparity in sentencing treatment that would justify incarceration in the case of Major Watts.

 

[30]      The position of the defence on sentence is that a reprimand would be a fit punishment.  The defence says that there was a pattern of negligent behaviour in this case of which the actions and failings of the offender were but a part.  The offender did the right thing by advising his superior of his lack of experience and qualification with the weapon and in relying upon someone, his second-in-command, who was reasonably seen at the time to be proficient, to run the range properly.  There is no explanation in the evidence for why this weapon fired its payload backwards in the direction of the soldiers rather than downrange, where it was presumably aimed. As for causing bodily harm, the unlawful act relied upon by the prosecution was the negligence alleged and found in failing to withdraw the soldiers or ensuring that they were under cover.  It is said that this puts the case toward the less serious end of the spectrum of offences contrary to section 269 of the Criminal Code, because in most such cases, the unlawful act that causes the bodily harm is an intentional act, and therefore, more blameworthy. 

 

[31]      While there is some force in some of the submissions made on behalf of Major Watts, I conclude that a simple reprimand is wholly insufficient to address the degree of responsibility of the offender for the tragic events of February 12th, 2010.  As to the moral blameworthiness of an act of penal negligence generally, I have taken some guidance from the observations of McLaughlin J, as she then was, speaking for herself and three concurring justices of the Supreme Court of Canada in R v Creighton [1993] 3 SCR 3.  And I quote:

 

The question of mens rea will arise only where it has been shown that the accused's conduct (the actus reus) constitutes a dangerous and unlawful act (as in unlawful act manslaughter), or a marked departure from the standard of care of a reasonably prudent person (as in manslaughter by criminal negligence or penal negligence offences).  This established, conflict with the prohibition against punishing the morally innocent will arise only rarely.  In unregulated activities, ordinary common sense is usually sufficient to permit anyone who directs his or her mind to the risk of the danger inherent in an activity to appreciate that risk and act accordingly -- be the activity bottle throwing (as in R v De Sousa) or a barroom brawl.  In many licensed activities, such as driving motor vehicles, there must be a basic amount of knowledge and experience before permission to engage in that activity will be granted (see R v Hundal).  Where individuals engage in activities for which they lack sufficient knowledge, experience or physical ability, they may be properly found to be at fault, not so much for their inability to properly carry out the activity, but for their decision to attempt the activity without having accounted for their deficiencies.   The law expects people embarking on hazardous activities to ask questions or seek help before they venture beyond their depth.  Thus, even the inexperienced defendant may be properly found to be morally blameworthy for having embarked upon a dangerous venture without taking the trouble to properly inform himself or herself.  The criminal law imposes a single minimum standard which must be met by all people engaging in the activity in question, provided that they enjoy the requisite capacity to appreciate the danger, and judged in all the circumstances of the case, including unforeseen events and reasonably accepted misinformation.  Without a constant minimum standard, the duty imposed by the law would be eroded and the criminal sanction trivialized.

 

[32]      So what is the degree of moral fault in the present case?  Here, the offender did not sufficiently familiarize himself with the dangers of the C19 weapon, nor did he take the simple precautions that would have prevented death and injury that I consider he might well have taken if he had sufficiently informed himself of the risks.  He should have known from his own training that the development of weapons skills in the soldiers proceeds by steps, well before live firing on the range. 

 

[33]      I cannot credit the excuse, given repeatedly by the offender in the course of his testimony at trial, that he had delegated the responsibility for the running of the C19 range to his second-in-command.  As the prosecution correctly points out, an officer can delegate tasks, but cannot delegate responsibility.  This succinct observation is more than a mere platitude.  It points to an important aspect of the nature of command in the Canadian Forces that makes the relationship between a superior officer and his or her subordinate unique, and quite different from the relationship of supervisor and employee with which most of us, civilian and military alike, are perhaps more familiar. 

 

[34]      In the face of the standards for range safety clearly set out in the Training Safety publication, it was incumbent upon Major Watts, as the on-site officer in command of the soldiers in his platoon, to familiarize himself with the C19 weapon and ensure that in the conduct of the range by his soldiers, the prescribed safety standards were adhered to.  It was manifestly insufficient for him to simply assume that his subordinate, Warrant Officer Ravensdale, knew what he was doing without taking any steps to satisfy himself that that was indeed the case so that he, himself, would be in a position to remedy any deficiencies that he might have observed or might otherwise have been brought to his attention in the course of the range practice.  The suggestion that others who were present were in as good a position as the offender to sound the alarm if safety was compromised is, to my mind, simply irrelevant.

 

[35]      Major Watts joined the King's Own Calgary Regiment as a private in 1986 and was commissioned in 1989.  He released in 1993 and rejoined the regiment in 2003, after marrying and starting a family.  He has always served in the Reserve Force where he has distinguished himself with his devotion to his service and his soldiers.  The testimonial letters submitted in evidence by his counsel confirm that he is held in the highest esteem by his fellow officers and non-commissioned members alike.  Two of the soldiers that were seriously injured on February 12th submitted glowing appraisals of Major Watts as an officer and a leader. 

 

[36]      It is clear to me that he is a highly valued member of his unit with every prospect of advancement in rank and responsibility.  In addition to his Reserve Force service, he contributes in other ways to the wider community as a full-time firefighter by occupation, and volunteers in his spare time to help others.  Many witnesses testified during the trial and after the findings to his fine character, his concern for the soldiers under his command, both professionally and personally, and his attention to detail. 

 

[37]      On all the circumstances of the case, relating both to the offences and to the offender, I do not consider dismissal from the Canadian Forces to be appropriate, largely for the reasons mentioned above as to why I do not consider imprisonment appropriate, but also because I believe the offender can continue to make an important contribution as a member of the Canadian Forces.  I have some confidence that the offender will come to an appreciation of the responsibilities he failed to discharge on this occasion and that he can continue to be a highly effective officer in the Canadian Forces.

 

[38]      I consider that the sentencing objectives of deterrence and rehabilitation are properly served in this case by the punishment of reduction in rank.  By this example, others will be regularly reminded, again, of the importance to be attached to the safety of Canadian soldiers, even, and perhaps especially, in a theatre of war.  But as I have observed in other cases, where rank can be lost, it can also be regained.  The sentence, therefore, also has an important rehabilitative aspect. 

 

[39]      I have considered whether a weapons prohibition order under section 147.1 of the National Defence Act should be made in this case.  While the offences involve an explosive substance, I am not persuaded that the interests of the safety of the offender or anyone else make it desirable that such an order be made and I decline to make a weapons prohibition order.  Stand up please, Major Watts.

 

FOR THESE REASONS, THE COURT:

 

[40]      SENTENCES the offender, Major Watts, to reduction in rank to the rank of lieutenant and to a severe reprimand.

 

Counsel:

 

Major A.M. Tamburro, Canadian Military Prosecution Services

Co-counsel for Her Majesty the Queen

 

Major R.D. Kerr, Canadian Military Prosecution Services

Co-counsel for Her Majesty the Queen

 

Mr B. Der, DerBurgis Criminal Lawyers, 2410-645 7 Avenue South West, Calgary,

Alberta

Counsel for Major D.W. Watts