Cour martiale

 

COURT MARTIAL

 

Citation: R. v. Burton, 2018 CM 2002

 

Date:  20180122

Docket:  201757

 

Standing Court Martial

 

Canadian Forces Base Shilo

Shilo, Manitoba, Canada

 

Between:

 

Her Majesty the Queen

 

- and -

 

Sergeant W.C. Burton, Offender

 

 

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

 

REASONS FOR SENTENCE

 

(Orally)

 

[1]               Today, Sergeant Burton admitted his guilt to one charge contrary to section 97 of the National Defence Act (NDA) which reads as follows:

 

Particulars: In that he, on or about, 28 July 2017, at or near the International Peacekeeping and Security Centre in Yavoriv, Ukraine, was drunk.

 

[2]               The evidence before this Court includes a Statement of Circumstances, which reads as follows:

 

“STATEMENT OF CIRCUMSTANCES

 

1.         At all material times, Sergeant Burton was a member of the Canadian Armed Forces, Regular Force. He was serving as an infantryman in the 2nd Battalion Princess Patricia’s Canadian Light Infantry, and was deployed in that capacity as a member of Joint Task Force Ukraine, Operation Unifier (JTF-U (Op UNIFIER)), Yavoriv Training Area, L’viv Oblast, Ukraine.

 

2.         While in theater, Sergeant Burton was employed as an infantryman whose role was to train Ukrainian soldiers in infantry and soldiering related skills.

 

3.         During the deployment, Theater Standing Order 107 – Policy on Alcohol and other Substances, issued 5 April 2017 – outlined to the members of JTF-U the rules regarding the possession and consumption of alcohol. Sgt Burton was aware of TSO 107 and the maximum of two alcoholic drinks per 24 hour period. The policy also provides that members of JTF-U are at all times ambassadors of Canada and will maintain a high standard of professionalism both on and off duty.

 

4.         On 28 July 2017 at approximately 0100 hours, Master Seaman Botelho, who was residing in Hostel 7, CAF quarters at the International Peacekeeping and Security Centre in Yavoriv, Ukraine, woke up to the sound of someone screaming profanities (in English) and causing a ruckus outside of Hostel 7. As the member was concerned, she got dressed and attended the area behind Hostel 7. MS Bothelho was met by Sgt Burton and observed two other members, subsequently identified as Sgt Lewis and Sgt Shulaev. The member noticed a large bruise on the side of Sgt Burton’s face and noted that the other two members were embracing each other and were violently striking each other while one of the two was crying inconsolably. She expressed her concern to Sgt Burton after he asked her to identify herself and was told by Sgt Burton that everything was fine and that she should go to bed. Sgt Burton then thanked MS Botelho for being caring. As she was concerned for the wellbeing of Sgt Burton and the other two members, MS Botelho woke MCpl O’Brien, Military Police, who was residing in Hostel 7.

 

5.         MCpl O’Brien attended the area behind Hostel 7 to investigate the member’s report of loud noises. MCpl O’Brien spoke with Sgt Shulaev and observed Sgt Burton and Sgt Lewis talking, consoling each other and hugging. Investigation by MCpl O’Brien led him to believe Sgt Burton and the other two sergeants were intoxicated by alcohol. MCpl O’Brien woke the TF Sherriff, WO Boyd, a military police member, who attended the area and also formed the opinion that Sgt Burton was intoxicated by alcohol. As such, WO Boyd woke several members of the TF chain of command to assist with the incident.

 

6.         Several high ranking non-commissioned and commissioned members of the COC responded and, through their observations, formed the opinion that Sgt Burton and the other two sergeants were obviously intoxicated by alcohol.

 

7.         Due to both the level of intoxication and prior report of a ruckus, it was decided that a sentry, composed of rotating senior non-commissioned members and officers, would remain in the area of the collective sleeping areas of Sgt Burton and the other two sergeants throughout the remainder of the night. There were no other issues observed throughout the remainder of the night.

 

8.         On 6 August 2017, two charges were laid against Sergeant Burton in relation to his conduct on 28 July 2017. The Charges were referred to the Director of Military Prosecutions on 31 August 2017. Following a review of the investigation into this matter, on 3 October 2017 one charge was preferred by the Director of Military Prosecutions.

 

9.         At the earliest opportunity following the 3 October 2017 preferral of the charge, Sgt Burton confirmed his intention to enter a plea of guilt and take full responsibility for his actions.”

 

[3]               A Statement of Facts was also entered as evidence, which reads as follows:

 

“STATEMENT OF FACTS

 

1.                  Prior to his work-up training for deployment on Joint Task Force Ukraine, Operation Unifier (JTF-U (Op UNIFIER)), Yavoriv Training Area, L’viv Oblast, Ukraine, Sgt Burton was experiencing difficulties. These were, in part, related to Sgt Burton being away from his wife and children for extended periods of time (in his capacity as a CAF member).

 

2.                  While on deployment, these difficulties were becoming even more challenging. As a result, Sgt Burton sought to move his HLTA forward so he could address these challenges.

 

3.                  Just before being deployed Sgt Burton was promoted to the rank of sergeant. His promotion was, in part, the result of his being the top rated Master Corporal at the 2 PPCLI regiment. In addition to his being the overall top rated Master Corporal in 2016, he was also the top candidate on the Rifle Section command Course in 2016. Such proficiencies in training and performance have, in addition to qualifying him to the rank of Sergeant, have qualified him as both a sniper and reconnaissance.

 

4.                  Sgt Burton took great pride in being promoted to his current rank and appreciated the confidence his Chain of Command placed in him as a NCM leader. However, as a result of the circumstances surrounding the matter before the court, Sgt Burton sincerely regrets his actions and feels that he has let his Chain of Command and peers down. This is in part why he has promptly accepted full responsibility for his actions, to demonstrate he is capable of learning from his mistakes, seeking any assistance necessary to improve his shortcomings and again be a model soldier, leading by example and being a well-respected member of his Chain of Command.”

 

Joint Submission

 

[4]        In a joint submission, both the prosecution and defence counsel recommend that the court impose a sentence of a reprimand and a fine of $750.

 

[5]        The joint submission before the Court is reviewed in the context of the current 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.”

 

[6]        In a plea bargain, the prosecution recommends a sentence that the accused is prepared to accept, avoiding the stress of a trial and providing an opportunity for offenders, such as Sergeant Burton, to begin making amends and moving on with his career and his life. 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. In addition, the unit benefits as all parties can now move on.

 

[7]        As you heard when I verified the guilty plea earlier, by entering into 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 of a high level of certainty that the Court will accept the joint submission.

 

Assessing the joint submission

 

[8]        The prosecutor who proposes the sentence will have been in contact with the accused’s chain of command. The prosecution is aware of the needs of the military and its surrounding community and is responsible for representing those interests. Conversely, defence counsel acts exclusively in the accused’s best interest, which in this case ensures that the accused’s plea is a voluntary and informed choice and unequivocally acknowledges his guilt. The Court relies heavily on counsel’s professionalism and judgement.

 

Evidence

 

[9]        In this case, the prosecutor read the Statement of Circumstances as well as an agreed Statement of Facts that outlined the specific personal circumstances of the accused. He then provided the documents required at the Queen’s Regulations and Orders for the Canadian Forces article 112.51 that were supplied by Sergeant Burton’s chain of command.

 

[10]      In addition, the Court benefitted from counsel’s submissions to support their joint position on sentence emphasizing the facts and considerations relevant to Sergeant Burton.

 

[11]      Counsel’s submissions and the evidence before the Court have enabled me to be sufficiently informed of Sergeant Burton’s personal circumstances so I may consider any indirect consequence of the sentence, and impose a punishment adapted specifically to Sergeant Burton.

 

The Offender

 

[12]      Sergeant Burton is 30 years old, married and has two small children. He enrolled in the Canadian Armed Forces (CAF) in July 2007 and by all accounts has excelled at all aspects of his career. Within a ten-year period, he has deployed on three major missions and risen quickly to the rank of sergeant. He has, by all accounts, demonstrated that he has an encouraging career ahead of him with great potential to rise to the highest levels.

 

Objectives of sentencing to be emphasized in this case

 

[13]      Prosecution emphasized that in their negotiations, both he and defence counsel closely considered the objectives of sentencing. Based on his submissions, sentencing should focus on the objective of general deterrence. This means that the sentence should deter not only Sergeant Burton from reoffending, but also deter any other CAF members who might be tempted to commit similar or comparable offences.

 

[14]      In making the joint submission, counsel advised the Court that they considered all the relevant aggravating and mitigating factors. After hearing the submissions of counsel, the Court highlights the following factors for the record:

 

(a)                The offence committed occurred out of the country, on a deployment, in light of a specific order that limited the consumption of alcohol;

 

(b)               Although it appears that this incident is out of character for Sergeant Burton, it did occur while he was serving abroad as a senior non-commissioned officer, in a mentoring role where he was responsible for ensuring that all soldiers follow the rules;

 

(c)                However, Sergeant Burton’s plea of guilty for the offence must be given its full weight. Although he suffered a lapse of judgement, the fact that he took prompt and full responsibility for his actions is an example of who he is as a senior non-commissioned officer and perhaps is one of the reasons why he has risen to the rank of sergeant in less than ten years;

 

(d)               The Court recognizes that Sergeant Burton had an unblemished record and in general, has not just made a positive contribution to the CAF, but he has led by example while committing himself entirely to his career. His multiple deployments and quick rise in rank are examples of the confidence that the chain of command has already invested in him;

 

(e)                Sergeant Burton is a young man with a great deal of potential. As a senior non-commissioned officer, only 30 years old, the Court expects this event will serve as a powerful reminder of the importance of seeking external resources to address personal issues, of any type, before they interfere with one’s judgement. I hope that the end of these proceedings will mark a turning point allowing him to move on in a very positive way.

 

[15]      As defence counsel eloquently stated, you made a mistake during a stressful time in your life. We all make mistakes, but it is how we deal with these lapses in judgement which reveal an individual’s true character.  The Court notes that your public acceptance of responsibility and your genuine apology to your peers and fellow soldiers combined with the fact that you permitted yourself to stand as an example to others are inspiring. It is the ability to learn from mistakes, demonstrate positive leadership while building resiliency that develops our strongest and most successful leaders within the CAF.

 

Conclusion

 

[16]      After considering counsel’s submissions in their entirety and considering all the evidence before the Court, I must 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. In other words, would the acceptance of the proposed sentence cause the CAF community and the community at large to lose confidence in the military justice system?

 

[17]      Considering all of the factors, the circumstances of the offence and of the offender, the indirect consequences of the finding or the sentence, the gravity of the offence, but more importantly the previous character of the offender, I am satisfied that counsel have discharged their obligations in making their joint submission.

 

FOR THESE REASONS, THE COURT:

 

[18]      FINDS you guilty of the charge of drunkenness contrary to section 97 of the NDA.

 

[19]      SENTENCES you to a reprimand and a fine of $750 payable in $100 payments until full repayment. The payments should begin no later than the 1st of March, 2018 pay period.  In the event you are released from the CAF for any reason before the fine is paid in full, any outstanding unpaid balance will be due the day prior to your release.

 

Counsel:

 

Major R.J. Gauvin for the Director of Military Prosecutions

 

Mr D. Hodson, and Ms D. Mansour, Defence Counsel Services, Counsel for Sergeant W.C. Burton