Cour martiale

 

COURT MARTIAL

 

Citation: R. v. Scott, 2018 CM 2034

 

Date: 20181121

Docket: 201822

 

Standing Court Martial

 

Canadian Forces Base Borden

Borden, Ontario, Canada

 

Between:

 

Her Majesty the Queen

 

- and -

 

Sergeant E.R. Scott, Offender

 

 

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

 

REASONS FOR SENTENCE

 

(Orally)

 

Introduction

 

[1]               After having found you guilty of the first, third and fifth charges on the charge sheet, the Court must now determine and pass sentence on these charges, which read as follows:

 

Facts

 

Charge 1

 

[2]               Corporal McElroy was a candidate on Primary Leadership Qualification (PLQ) Serial No. 1604, a course held from 10 January 2017 until 1 March 2017 at the Royal Canadian Air Force (RCAF) Academy. Corporal McElroy testified that on the first day of the course, while lined up for inspection, Sergeant Scott referred to him as the “bastard child of Hitler”. Corporal McElroy believed Sergeant Scott made the comment because, at that time, Corporal McElroy had a comb over hairstyle and a moustache. He stated that he did not react, but found the reference offensive and distasteful.   After the first day, Sergeant Scott made other inappropriate comments to him. He stated that at least once a day, when Sergeant Scott spoke to him, he made a reference to Hitler.  He called him, “Little Hitler”, “Mein Fuhrer” or the “bastard son of Hitler”. Corporal McElroy said he did not respond to the comments and focused on succeeding on the course. Given the context of Hitler’s past, he found the comments comparing him to Hitler to be offensive and a slander of character. In order to avoid the comments, Corporal McElroy stated that approximately four to five weeks into the course he shaved his moustache and cut his hair shorter.

 

Charge 3

 

[3]               Master Corporal Ross was a candidate on PLQ Serial No. 1604, the same course as Corporal McElroy. Master Corporal Ross was subjected to multiple comments from Sergeant Scott, that clerks are not “real soldiers” and telling her that “those who served in Kandahar Air Field (KAF) were not worthy of their medals.” He told her on several occasions, clerks were “fucking useless” and were “not real soldiers”.

 

[4]               In another incident, knowing that Master Corporal Ross was struggling on the course, when she passed her drill test, Sergeant Scott expressed words of surprise, to the effect that “you actually passed” and then made a reference that he would “get [her] the next time”.

 

[5]               In another incident, while conducting Test of Elementary Training (TOETs) with weapons, Sergeant Scott used the phrase “cunt hair” while looking directly at her. Master Corporal Ross found Sergeant Scott’s conduct offensive and, in her opinion, it led to her feeling ostracized and singled out from her team.

 

Charge 5

 

[6]               Corporal Royer was a PLQ Candidate on Serial No. 1603, an earlier course held from 21 October until 21 December 2016 at the RCAF Academy. Corporal Royer was subjected to various comments from Sergeant Scott that ranged from “faggot”, “homo” to “fatso”. On one day during the course, Sergeant Scott told the syndicate something to the effect that he “wasn’t going to tell them how to suck eggs”. Corporal Royer, who did not understand the meaning of this comment, questioned what he meant. In response, Sergeant Scott replied by saying, “The same way you suck a dick, you homo.” Corporal Royer, who had been subjected to various comments throughout the course, found the treatment offensive.

 

Positions of the parties on sentencing

 

Prosecution

 

[7]               In his submissions, the prosecution requested that the Court impose a severe reprimand and a fine in the amount of $3,000. He submitted, that based on the gravity of the offences and the degree of responsibility of the offender, it was a fit and appropriate sentence. He argued that the three charges of violations of section 129 of the National Defence Act (NDA) occurred in a training environment while Sergeant Scott was in a position of authority.

 

Defence

 

[8]               Defence submitted that, under the circumstances, the Court should impose a fine alone of $750. He further argued that there is ambiguity in the current drafting of NDA, subsection 249.27(1) on the types of sentences that trigger a criminal record and, in the circumstances of this case, he argues that a criminal record is not merited. For the record, the Court agrees.

 

Analysis

 

Evidence

 

[9]               In the case at bar, the prosecutor provided the documents required under Queen’s Regulations and Orders for the Canadian Forces (QR&O) article 112.51 that were supplied by the chain of command.

 

[10]           The Court heard from four witnesses:

 

(a)                from the prosecution, Chief Warrant Officer J.G.S. Marshall, Commandant of the RCAF Academy;

 

(b)               from the defence:

 

i.                     Lieutenant-Colonel T. Ruggle, Commanding Officer of the Lorne Scots Regiment based out of Brampton;

 

ii.                   Captain G. Lutz who is the unit Chaplain currently at Canadian Forces Base (CFB) Borden; and

 

iii.                  Warrant Officer W.T. Langer, supervisor on recorded warning;

 

(c)                this Court pursuant to QR&O 112.32(1)(a), recalled Chief Warrant Officer J.G.S. Marshall to answer additional questions on the ongoing administrative review of the offender.

 

[11]           In addition, pursuant to the new provisions of the QR&O 112.481, the prosecution invited the three victims to submit statements. Although all three were given the opportunity to provide a statement, only one victim, Master Corporal Ross prepared a victim impact statement, which she asked the prosecution to read for the Court. In her statement, she summarized the emotional harm that flowed from the treatment she suffered. She stated that as a result of the treatment she endured on the PLQ, she felt devalued and that in her ten years of military service, the PLQ was the most negative experience she had and that the incidents affected her interactions and contributions in the workplace. Now, with over 12 years of military service and facing a pending medical release, she will not ask to be retained in the CAF.

 

[12]           Chief Warrant Officer Marshall, Commandant of the RCAF Academy, provided evidence on the impact of Sergeant Scott’s conduct on the RCAF Academy. The short-term impact flowing from Sergeant Scott’s removal from teaching resulted in an increased burden on the existing staff as they had to deliver the classes that he would have delivered. Further, he testified that, since the RCAF Academy draws students from across the Canadian Armed Forces (CAF), when the candidates returned back to their units, they reported negatively on what had occurred during their PLQ. In his opinion, Sergeant Scott’s conduct undermined the credibility of the RCAF Academy. He also felt that his conduct undermined the professionalism of his peers when their reputation was sullied by affiliation.

 

[13]           Further, the Court benefitted from very meaningful counsel submissions to support their respective positions on sentence, where they highlighted the facts and considerations relevant to Sergeant Scott’s personal circumstances.

 

[14]           Counsel’s submissions and the evidence before the Court have enabled me to be sufficiently informed of Sergeant Scott’s personal circumstances so I may adapt and impose a sentence specifically for him, taking into account the rehabilitation and progress that he has made to date.

 

The offender

 

[15]           Sergeant Scott is 47 years old and has a high school education. He is formally trained as a fitness and leadership instructor. As a reservist, he has served his country for approximately 23 years, which includes a tour in Afghanistan. He has three children, one who is an adult and two under the age of 18. He is currently separated and pays $500 per month in spousal support and shares custody of his two younger children.

 

[16]           The Court noted that as a result of the charges before the Court, Sergeant Scott has been the subject of significant administrative action. Chief Warrant Officer Marshall indicated that after learning of the alleged incidents, Sergeant Scott was placed on recorded warning which he successfully passed. However, he remains the subject of an ongoing administrative review by Director of Military Careers Administration 2.

 

Witnesses

 

Lieutenant-Colonel T. Ruggle

 

[17]           Lieutenant-Colonel Ruggle is the Commanding Officer of the Lorne Scots Regiment, the same Regiment to which Sergeant Scott belongs. He testified that he has known Sergeant Scott for 20 years, having worked with him at different levels throughout their respective careers. He described Sergeant Scott as motivated and skilled in his trade, consistently having a high level of performance. He stated that based on qualifications, operational experience, ability to act as a leader, he would rate Sergeant Scott in the top one third of his peers. He indicated that Sergeant Scott is known for being intense. However, he made it clear that he would be comfortable with Sergeant Scott returning to serve within the Regiment. He indicated that depending on what flowed from the consequences of the court martial, there might need to be a period of observation, but he would have no qualms welcoming him back. When asked to comment on Sergeant Scott’s capacity to change and adapt, he felt strongly that he would be successful. He explained that, in his experience, Sergeant Scott is a reflective individual and takes the time to think through circumstances. He indicated that there are currently no Class B contracts available at the Lorne Scots, but that there are Class A opportunities on Thursday evenings and a weekend exercise each month.

 

Captain G. Lutz

 

[18]           Captain Lutz, who is a unit chaplain on the base in Borden, testified that he has known Sergeant Scott for many years. Captain Lutz originally joined the CAF with an infantry unit and has been a chaplain for 16 years. Although he knew Sergeant Scott when they were both in the reserves with the infantry and did area exercises together, he did not really work closely with Sergeant Scott until Captain Lutz arrived in Borden in 2016. In 2016, Captain Lutz transferred to the regular force as a chaplain and was posted to CFB Borden. Captain Lutz testified that he felt that both he and Sergeant Scott had much in common because they were both infantry, from highland units and shared the bond of being infantry working in an Air Force environment.

 

[19]           In his testimony, he stated that during exercises, chaplains are embedded with the troops and, as such, he has had the opportunity to observe Sergeant Scott on exercise. In his experience, he saw Sergeant Scott as a good leader who wanted the best for his students, providing firm direction to enable them to achieve their objectives. In comparing Sergeant Scott’s approach to his peers, he told the Court that his approach was comparable to other sergeants in the combat arms.

 

[20]           When asked for comment on Sergeant Scott’s ability to adapt, he gave an example of his recent observations of Sergeant Scott on a spring exercise, when Sergeant Scott fulfilled the role of company commander. He stated that he specifically saw Sergeant Scott, numerous times, take a step back and rethink what he was going to say. He stated that, in his opinion, this showed that Sergeant Scott made efforts to be aware and he is careful with what he is saying.

 

Recorded warning

 

[21]           Upon the reporting of the alleged incidents, Sergeant Scott was placed on a recorded warning which was administered by Warrant Officer Langer.  In supervising Sergeant Scott’s progress, Warrant Officer Langer testified that he “touched base” with Sergeant Scott regularly and conducted monthly interviews. Although Chief Warrant Officer Marshall indicated that Sergeant Scott appeared hesitant to make changes at first, Warrant Officer Langer indicated that Sergeant Scott progressed extremely well. He indicated that both he and Sergeant Scott had various discussions and interviews on the subject of Operation HONOUR and over time, Sergeant Scott became very engaged, sending Warrant Officer Langer articles, including newspaper clippings not just on what was happening in Canada, but elsewhere. Throughout the interviews, Warrant Officer Langer stated that he felt Sergeant Scott understood the gravity of the situation he was facing. Warrant Officer Langer also stated that Sergeant Scott seemed to have had to relearn how to approach certain things, but in his opinion Sergeant Scott succeeded.

 

[22]           After the six-month period of the recorded warning was completed, Warrant Officer Langer testified that they still met to discuss the issues and, as late as last week, Sergeant Scott sent him articles. In his opinion, Sergeant Scott has not just been successful, but he remains fully committed to improving himself.

 

[23]           Warrant Officer Langer also told the Court that during the time when Sergeant Scott had been removed from teaching, he continued to help in a support role contributing positively to the RCAF Academy. He indicated that some of Sergeant Scott’s peers were concerned about how he would react, but Sergeant Scott rolled up his sleeves and helped anywhere he could.  Warrant Officer Langer testified that Sergeant Scott had adapted and he would have no hesitation working with him in the future.

 

[24]           After Sergeant Scott successfully completed the recorded warning, he returned to instructional duties. At first, he had either the flight warrant or a senior sergeant attending his classes to monitor him, but he was eventually provided more autonomy. For the last year, he taught on his own and there have been no further incidents.

 

Purposes, objectives and principles of sentencing to be emphasized in this case

 

[25]           The fundamental purposes of sentencing in a court martial are to promote the operational effectiveness of the CAF by contributing to the maintenance of discipline, efficiency and morale and to contribute to respect for the law and the maintenance of a just, peaceful and safe society. In order to accomplish this, it is imperative that members be provided opportunities for reforming their conduct and shortcomings. Sergeant Scott has already successfully availed himself of the opportunity.

 

[26]           The fundamental purposes of sentencing are achieved by imposing sanctions that have one or more of the objectives set out within the NDA at subsection 203.1(2). On the facts of this case, the prosecution submits that the objectives they considered most important are general and specific deterrence as well as denunciation. I agree with their assessment.

 

[27]           It is a fundamental principle that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. Although the Court found that Sergeant Scott’s conduct was blameworthy, the following observation, submitted by the defence addresses Sergeant Scott’s degree of responsibility.  Sergeant Scott’s defence counsel clarified that unlike some misconduct contrary to Operation HONOUR, the greatest part of Sergeant Scott’s misconduct before the court, involved crude jokes, banter and chirping that he argues were used by Sergeant Scott to ease students of anxiety and stress. He admitted that the comments were distasteful, but ultimately not malicious. He also argued that although some comments were of a sexual nature, there was never any sexual innuendo nor were the comments made for sexual gratification. Further, defence argued that, at no time, was there any physical contact. Defence submits that this is a case where the offender’s “mouth ran faster than his mind”, without thinking about the consequences of what he was saying. The court agrees. The convictions before the court involve violations of section 129 of the NDA for conduct to the prejudice of good order and discipline, an offence which captures a very broad range of misconduct.  By comparison with other precedents involving similar misconduct, Sergeant Scott’s degree of responsibility is less serious.

 

Accounting for relevant aggravating or mitigating circumstances

 

[28]           In the military justice system, under section 203.3 of the NDA, in imposing a sentence, the Court shall also take into consideration a number of principles relevant to the case. It shall take into consideration that its sentence be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and aggravating.

 

Aggravating factors

 

[29]           After hearing the submissions of counsel, the Court highlights the following aggravating factors for the record:

 

(a)                Victim/Unit impact:  From both the victim and unit impact statements, it is clear that Sergeant Scott’s conduct had enduring impact on at least one of the victims and, as Chief Warrant Officer Marshall indicated, it has also stained the RCAF Academy and its instructors;

 

(b)               Leadership:  Sergeant Scott was in a position of authority as an instructor teaching at a leadership academy;

 

(c)                Context of Operation HONOUR:  Although on the evidence, it is not clear what motivated the June 2016 Personnel Development Review (PDR), it is clear that the PDR described in detail the expectations of Operation HONOUR, and Sergeant Scott was personally reminded of his responsibilities and his expected conduct as an instructor; and

 

(d)               Nature of some of the comments:  Some comments focussed on sex and sexual orientation and were completely inappropriate.

 

Mitigating factors

 

[30]           After hearing the submissions of counsel, the Court highlights the following mitigating factors for the record:

 

(a)                Previous conduct:  Sergeant Scott has no conduct sheet or criminal record for the court to consider.

 

(b)               Successful administrative action - recorded warning:  Sergeant Scott successfully completed his recorded warning correcting his digressions by making changes to his behaviour. Warrant Officer Langer’s testimony confirmed Sergeant Scott’s progression and his engagement and acceptance of Operation HONOUR, thereby making positive change.

 

(c)                Post-charge conduct:  Upon successful completion of the recorded warning, Sergeant Scott returned to the classroom as an instructor and although he was supervised in the early days, his successful performance, with no further incidents demonstrated that he possesses the required professionalism to continue service with the CAF.

 

(d)               Genuine remorse:  Prior to sentencing, Sergeant Scott was given the opportunity to address the Court. He confessed that the last few years have been a roller coaster ride for all involved. He displayed no animosity towards anyone, including the students, the school and, in fact, he went so far to thank the Court, including the prosecution and defence. He advised the Court that he has personally evolved and takes responsibility for his conduct. In fact, he said, “I wear this every day.” He described how the incidents led to an avalanche in his personal life and have taken a real toll, but he is a different person moving forward.

 

(e)                Wealth of experience and positive reputation:  The evidence before the Court was consistent in confirming that Sergeant Scott is highly skilled, committed to military service and capable of making a continued positive contribution. The testimony also confirmed that notwithstanding this lack of judgement with respect to the charges before the Court, Sergeant Scott is well regarded and respected, particularly for the positive change that he has made.

 

(f)                 Loss of income and status: The aftermath of these incidents led to a humiliating and difficult time for Sergeant Scott. He suffered a loss of respect at the RCAF Academy and from his peers. Most importantly, he lost the opportunity to have his contract of reserve service renewed at the RCAF Academy.

 

(g)                Future potential:  Although the Commandant of the RCAF Academy determined that it was not in the best interests of the RCAF Academy to renew Sergeant Scott’s contract at the Academy, there was unanimous agreement, that Sergeant Scott demonstrated the necessary discipline to adapt and make changes to his conduct. All witnesses testified to the positive potential for Sergeant Scott’s continued future service with the CAF.

 

Parity

 

[31]           Pursuant to the new provisions in the NDA at paragraph 203.3(b), the law requires that the sentence be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.  In making its recommendation on sentence, the prosecution relied upon a significant number of precedents which the Court reviewed. They include R. v. Duhart, 2015 CM 4023, R. v. Williams, 2017 CM 4018 and R. v. McCabe and Gibson, 2010 CM 2008.  In his submissions, defence relied upon the following precedents: R. v. Desjardins, 2017 CM 3002; R. v. Williams, CM 2017 4018 and R v Rayment, 2012 CM 1003.

 

[32]           Based on the case law and submissions made by counsel, it is clear that the misconduct in the case at bar is less serious than the misconduct set out in the precedents. The Court specifically notes that Sergeant Scott has lost his full-time service contract as a reservist, which will result in significant financial loss.  This is a significant factor differentiating Sergeant Scott’s case from the offenders in the precedents provided and must be weighed carefully in the determination of any sentence this court may provide.

 

Any indirect consequences of the finding of guilty or the sentence should be taken into consideration

 

[33]           Pursuant to paragraph 203.3(e) of the NDA, defence counsel made extensive submissions on the indirect consequences of the finding and the sentence to be imposed. Sergeant Scott has already paid a huge price for his misconduct. Chief Warrant Officer Marshall confirmed that Sergeant Scott’s contract ended on 1 August 2018 and was not renewed. The Academy did find a way to extend his contract on Class A and Class B until December 2018, but he has not been offered a contract beyond that.  Chief Warrant Officer Marshall clarified that they were under no obligation to renew his contract and decided, as a result of the incidents, that Sergeant Scott was probably not the best fit for the RCAF Academy.

 

[34]           Chief Warrant Officer Marshall further testified that if Sergeant Scott had been a member of the regular forces, he would have been posted into a different type of role where he may have been better suited. However, as a reservist, a posting to a more suitable position where he could make a fresh start, is not an option. Further, Chief Warrant Officer Marshall emphasized that given the progress Sergeant Scott has made, he is deserving of continued service with the CAF.

 

[35]           Effective 1 December 2018, Sergeant Scott no longer has a full-time service contract. He hopes to obtain some Class A service days and another Class B contract, but he has not yet secured a position. It is certain that these court martial proceedings have been an obstacle. Exacerbating the consequences further, Sergeant Scott currently resides in private military quarters at CFB Borden, and his occupancy is linked to his service contract that has been terminated. There is a great deal of uncertainty that lies ahead.

 

[36]           Further, the Court learned that there is still an ongoing administrative review, which presents uncertainty for his future moving forward.

 

Criminal record

 

[37]           Counsel for both the prosecution and defence made submissions on what appears to be an unresolved ambiguity of subsection 249.27(1) of the NDA regarding criminal records. Defence argued that under the strict reading of the French wording of the subsection that two or more of the sentences leave the member with a criminal record. He is correct. He also noted that although Bill C-77 aims to clarify this provision, it is still making its way through the legislative regime. It was argued that, given the circumstances, Sergeant Scott needs to seek work and having a criminal record could be a substantial roadblock. The Court agrees with the defence that there is indeed an ambiguity in the legislation. There are amendments in place to resolve any confusion, which will be retroactive. However, that may not happen for a while. In the short term, it undeniably complicates the employment search for Sergeant Scott.

 

Overall assessment of sentence

 

[38]           In the Court’s view, Sergeant Scott has demonstrated progress in his rehabilitation and with his training, background, skills and demonstrated commitment to the CAF; his continued service is of significant benefit to the CAF. The Court is of the view that given his particular rehabilitation on the shortcomings that led to the charges before the court, the need for specific deterrence is not pressing.

 

[39]           Based on all the factors as well as the indirect consequences of the finding and the sentence discussed above, I am not convinced that a heavy fine in the amount suggested by the prosecution, or even in the amount suggested by the defence is the best sentence for the individual circumstances of Sergeant Scott. Although, this Court holds Sergeant Scott entirely responsible for his misconduct, he has already paid a significant price professionally, personally and financially. 

 

[40]           I have considered prosecution’s recommendation of a severe reprimand. A severe reprimand is higher on the scale of punishments than a fine and is intended to stand out as a blemish on the career record of an offender. It sends a message that Sergeant Scott engaged in conduct that resulted, albeit temporarily, in a loss in confidence by his chain of command. This is consistent with the facts of this case. I believe that the conviction for the offences before the Court, combined with the imposition of a severe reprimand are sufficient to serve as a long-term reminder to him of the consequences of his conduct.

 

[41]           In terms of general deterrence, the public court martial and conviction for what some may consider minor misconduct, combined with the accompanying administrative action already taken against him are sufficient to send a message that all members, no matter what element they serve, will be held accountable for their actions, inaction and decisions.

 

[42]           As Sergeant Scott very eloquently addressed, Operation HONOUR and the need for respect applies to everyone wearing a uniform. In fact, there is no trump card to be played because one is a member of the combat arms; nor is there a trump card because one is in the combat arms serving with the Royal Canadian Air Force or the Royal Canadian Air Force serving with the Army; it does not matter. We must all learn to adapt to our environment. That is what we are training for in the CAF.

 

[43]           In terms of denunciation, given that Master Corporal Ross was the one victim that sustained an enduring effect, the Court wishes to briefly reiterate its message delivered in its decision on finding. Although the Court notes that during her progress review board and meeting with the Commandant of the RCAF Academy, Master Corporal Ross may not have complained about Sergeant Scott’s treatment of her, the facts and their impact on her speak for itself.

 

[44]           Whether his comments were intended or not, in Master Corporal Ross’s view, Sergeant Scott’s various comments aimed to undermine her trade and, in her opinion, seemed particularly focused on belittling the role she played while serving in Afghanistan. It may not have been what Sergeant Scott intended, but that was how the message was received and interpreted by Master Corporal Ross.

 

[45]           One of the underlying principles to unit effectiveness in the CAF is teamwork, where every member’s contribution is valued regardless of their role. As members of the military we serve together to ensure the successful outcome of an operation.  Any conduct or behaviour that blunts this sense of teamwork is unacceptable regardless of the service or environment or context, but it is particularly troublesome when it exists in an institution whose mandate is to cultivate leadership qualities in the next generation of CAF non-commissioned members. PLQ is about instilling and developing confidence in junior leaders, not eroding it. When any conduct that thwarts the cultivation of leadership skills manifests itself, it must be quickly and vigorously dealt with because to not do so would undermine the core of leadership effectiveness and, ultimately, mission success.

 

[46]           This case is not just about differences in military culture. It is confirmation that our behaviour matters. The small things we say can have an impact on others, whether we intend them to or not.  It takes significant courage for complainants to come forward and report conduct that makes them feel uncomfortable, and when such reporting is done, it is imperative that concerns be taken seriously and addressed.

 

[47]           Before I render the final sentence, I would like to emphasize that it takes a lot of strength and courage to pick oneself up, accept responsibility for conduct when doing so, one endures personal humiliation. We all make mistakes; it is how we deal with our mistakes that governs our success moving forward. I wish to congratulate Sergeant Scott on the rehabilitative progress he has made to date and I wish him the best of luck as he moves forward.

 

FOR THESE REASONS, THE COURT:

 

[48]           SENTENCES Sergeant Scott to a severe reprimand.

 

Counsel:

 

The Director of Military Prosecutions as represented by Major G.J. Moorehead and Captain C.R. Gallant

 

Major A. Bolik and Captain A. Vitsentzatos, Defence Counsel Services, Counsel for Sergeant E.R. Scott