Cour martiale

 

COURT MARTIAL

 

Citation: R. v. Kearney, 2025 CM 6003

 

Date: 20250508

Docket: 202502

 

Standing Court Martial

 

Asticou Centre Courtroom

Gatineau, Quebec, Canada

Between:

 

His Majesty the King

 

- and -

 

Colonel R.E. Kearney, Offender

 

 

Before: Colonel N.K. Isenor, M.J.

 

REASONS FOR SENTENCE

 

(Orally)

 

I.       Overview

 

[1]               Colonel (Col) Kearney, the Court has accepted and recorded your plea of guilty to one charge under section 129 of the National Defence Act (NDA) for having committed conduct to the prejudice of good order and discipline. The particulars of the charge allege that on or about 17 October 2023, at or near Bucharest, Romania, you made remarks that might reflect discredit on the Canadian Armed Forces (CAF), to wit, referred to British Brigadier General (BGen) Dzisiewska as a “fucking cunt”, or words to that effect, contrary to article 19.14 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O) for the CAF. At the sentencing hearing, counsel proposed a joint submission, recommending that I sentence you to a severe reprimand and a fine in the amount of $3,000.

 

[2]               The Court must therefore determine whether imposing the sentence jointly recommended by counsel is contrary to the public interest in the circumstances of this case. For the reasons that follow, the Court accepts and will impose the sentence recommended by counsel.

 

Context

 

[3]               The relevant facts surrounding the commission of the offence were summarized in the Statement of Circumstances, to which Col Kearney admitted as true, and read as follows:

 

            “STATEMENT OF CIRCUMSTANCES

 

1.                  At all relevant times, Colonel (“Col”) Kearney was the Assistant chief of Staff of the G35 (Future Operations) of the Allied Rapid Reaction Corps (“ARRC”), stationed at Imjin Barracks, Innsworth, United Kingdom.

 

2.                  Between 2-19 October 2023, Col Kearney deployed with the entire ARRC (approximately 450 personnel) on EX STEADFAST JUPITER, a high-profile NATO computer-assisted command post validation exercise in Bucharest, Romania, whereon key components of the ARRC, including Col Kearney and his G35 team, were assessed for performance and ability to assume the role of the NATO Response Force for 2024.

 

3.         While at EX STEADFAST JUPITER, Col Kearney was quartered in an 8-person tent with six other senior officers of his G35 team, including American Lieutenant Colone (“LTC”) (OF-$) Sartori, plus British Wing Commander (“WG Comd”) (OF-4) Wilkinson.

 

4.         On EX STEADFAST JUPITER, Col Kearney was the secretary for the daily Target and Synchronization Working Group (“TSWG”), consisting of approximately 75 personnel ranked Sergeant to Colonel. As secretary, Col Kearney was responsible for the conduct, content and execution of the daily 90-minute brief to the two co-chairs of the TSWG, an American, Brigadier-General (“BGen”) Mountford, and a Brit, BGen Alston.

 

5.         Throughout EX STEADFAST JUPITER, British BGen (OF-6) Dzisiewska, who was not a member of the TSWG, regularly entered the TSWG and was critical of Col Kearney and his G35 team in front of the TSWG while preparing the brief. On several occasions, Col Kearney asked BGen Dzisiewska to raise her concerns with BGen Mountford. Col Kearney regularly raised his concerns with BGen Mountford.

 

6.         On 17 October, BGen Dzisiewska was again critical of Col Kearney and his G35 team before the TSWG brief.

 

7.         At around 2000 hours that day, after what he found to be a long and difficult day, Col Kearney returned to his tent and went on a short rant in the tent.

 

8.         During the rant, LTC Sartori said that Col Kearney criticized BGen Dzisiewska and called her a “cunt”.

 

9.         Wg Cmd Wilkinson told investigators that Col Kearney said in reference to BGen Dzisiewska that “she is a fucking cunt”.

 

10.       LTC Sartori said that he was shocked by the comment and Wg Cmd Wilkinson told investigators that he was offended by the remark, as he personally admired the British General. He stated that he found it so objectionable that he reported the comment to his Canadian counterpart immediately following the incident.

 

11.       At the first opportunity provided in the court martial process, Col Kearney took responsibility for his conduct and agreed to plead guilty to this offence.”

 

II.        Whether imposing a severe reprimand, combined with a fine in the amount of $3,000 would bring the administration of justice into disrepute or is otherwise contrary to the public interest.

 

Positions of the parties

 

Prosecution

 

[4]               The prosecution contends that Col Kearney made the improper comment against British BGen Dzisiewska in the course of his duties as the assistant chief of staff at the Allied Rapid Reaction Corps, and while serving on a multinational exercise with allies. The prosecution considered aggravating, the senior position and rank of Col Kearney, the vulgar and misogynistic nature of the comment made in the presence of two subordinate officers from two separate allied nations, and that the commission of the offence had an impact on the other CAF members serving on the operation and reflected discredit on the CAF. The prosecution also considered mitigating Col Kearney’s long service in the CAF, the lack of negative service record (containing eight positive entries) and Col Kearney’s early guilty plea. As a result, denunciation and deterrence should be the most important objectives for this case.

 

[5]               The prosecution contended that the sentence must be severe enough to deter and denounce the conduct, and that the proposed sentence takes into account the mitigating factors. It is appropriate, based on the circumstances of the offence and the offender, and is in line with sentences for similar convictions of acts to the prejudice of good order and discipline, and he is of the view that a sentence of a severe reprimand, combined with a fine in the amount of $3,000 would serve to denounce and deter the conduct. Both the prosecution and defence counsel agree that should Col Kearney be sentenced to a fine, terms directing Col Kearney to pay the $3,000 fine immediately would be appropriate.

 

Defence

 

[6]               Counsel for the defence provided additional information in relation to the personal situation of the offender. Col Kearney did not have his Class “C” contract renewed for an additional two years, as had been expected prior to this occurrence, and was posted back to Canada. He has subsequently retired from the CAF. Defence contends that this charge has already had a powerful financial impact on Col Kearney, and it has also had personal and family impacts on him as well, since this incident received national media coverage. Defence counsel submits that Col Kearney’s long and exceptional history of service to the CAF should be considered as a significant mitigating factor in this case. The severe reprimand, together with a fine in the amount of $3,000 would achieve the sentencing objective of denunciation and deterrence and submits that the joint submission proposed is most appropriate based on the facts in this case.

 

Sentencing Principles

 

[7]               When determining a sentence, the Court must be guided by the sentencing principles contained in the NDA. In this context, subsection 203.1(1) of the NDA provides that “the fundamental purpose of sentencing is to maintain the discipline, efficiency and morale of the Canadian Forces.”

 

[8]               This is to be achieved by imposing punishments that have one or more of the objectives outlined at subsection 203.1(2) of the NDA. These objectives include such things as “to promote a habit of obedience to lawful commands and orders”, “to maintain public trust in the Canadian Forces as a disciplined armed force” and “to denounce unlawful conduct and the harm done to victims or to the community that is caused by the unlawful conduct”.

 

[9]               The fundamental principle of sentencing is found at section 203.2 of the NDA. It states, “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

 

[10]           There are a number of other sentencing principles outlined at section 203.3 of the NDA, that a sentencing judge must also take into consideration when imposing a sentence. They include that, “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”, and that, “a sentence should be the least severe sentence required to maintain the discipline, efficiency and morale of the Canadian Forces”.

 

[11]           One or more of these objectives will inevitably predominate in the crafting of a fit sentence in an individual case, yet it must be kept in mind 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.

 

[12]           As recognized by the Supreme Court of Canada (SCC), courts martial allow the military to enforce internal discipline effectively and efficiently.

 

[13]           Punishment is the ultimate outcome once a breach of the Code of Service Discipline has been recognized following either a trial or a guilty plea and it is the only opportunity for the Court to deal with the disciplinary requirements brought about by the conduct of the offender, on a military establishment, in public and in the presence of members of the offender’s unit.

 

[14]           The imposition of a sentence at court martial proceedings, therefore, performs an important disciplinary function, making this process different from the sentencing usually performed in civilian criminal justice courts.

 

[15]           Even when a joint submission is made, the military judge imposing punishment should ensure, at a minimum, that the circumstances of the offence, and the offender are not only considered, but also adequately laid out in the sentencing decision to an extent that may not always be necessary in other courts.

 

[16]           As this Court informed the accused when he entered his plea of guilty, section 139 of the NDA 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.

 

[17]           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.

 

The public interest test

 

[18]           The SCC in the case of R. v. Anthony-Cook, 2016 SCC 43 at paragraph 32 has stated that, “a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest.”

 

[19]           The public interest test requires that the joint submission be rejected only when it is so unhinged from the circumstances of the offence and the offender, that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. This means that a sentencing judge may only depart from a joint submission where the joint submission is so lenient, or so severe, as the case may be, when viewed in light of the circumstances of the case and the offender, that accepting it would bring the administration of the military justice system into disrepute. Consequently, this recommendation severely limits my discretion in the determination of an appropriate sentence.

 

[20]           The threshold to depart from the joint submission being made is high as joint submissions respond to important public interest considerations. The prosecution agrees to recommend a sentence that the accused is prepared to accept, avoiding the stress and expense of a trial and allowing efforts to be channelled into other matters. Furthermore, offenders who are remorseful may take advantage of a guilty plea to begin making amends. The most important benefit of joint submissions is the certainty they bring to all participants in the administration of justice.

 

Circumstances of the offender

 

[21]           As for the offender’s personal situation, the documentary evidence listed at article 111.17 of the QR&O reveal the following:

 

(a)               Col Kearney is sixty years old and joined the CAF on 28 June 1983 and released on 30 November 2024 with several decades of a mix of regular and reserve force service;

 

(b)               his Member’s Personnel Record Résumé reveals a career filled with international postings and deployments, as well as in high-ranking command positions as commanding officer, chief of staff, liaison officer, assistant chief of staff and even as a staff officer on the Chief of Defence Staff’s (CDS) team.

 

(c)               Col Kearney has fifteen military decorations and medals including: Canadian Forces Decoration Second Clasp, CDS Commendation 1st Award, CDS Commendation 2nd Award, Royal Canadian Mounted Police Commander's Commendation1st Award, United Nation Force in Cyprus, United Nation Protection Force (Yugoslavia), Canadian Peacekeeping Service Medal, South-West Asia Service Medal, Meritorious Service Medal, General Campaign Star – SOUTH-WEST ASIA, General Campaign Star – SOUTH-WEST Rotation Bar, United State Meritorious Service Medal, Queen Elizabeth II's Diamond Jubilee Medal, Sovereign’s Medal for Volunteers, and Special Service Medal – North Atlantic Treaty Organization. He has eight positive entries on his conduct sheet, providing the particulars of some of these decorations and medals.

 

[22]           The Agreed Statement of Facts reveals the following:

 

“1.             Upon Colonel (“Col”) Kearney being charged, the Vice chief of the Defence Staff (“VCDS”), Lieutenant-General Allen, notified Col Kearney that he was considering removing him from the performance of military duty and asked for his representations on the matter.

 

2.      After considering the matter and the representations of Col Kearney, the VCDS opted not to relive Col Kearney from performance of his military duty and instead directed Brigadier-General (“BGen”) Carpentier to change the work location of Col Kearney in order to eliminate any risk of complicating potential legal proceedings.

 

3.      Col Kearney was therefore removed from his workplace after being ordered to stay away by BGen Carpentier.

 

4.      Upon the Canadian Forces media release regarding the charges, Col Kearney received significant national media attention.

 

5.      Col Kearney’s posting to the United Kingdom (”UK”) and his Class “C” terms of service (“TOS”) had originally been scheduled to end 1 June 2024. The plan had been for Col Kearney to extend his posting in the UK for two years. As a result of the charges, the plan to extend him was terminated and his class “C” TOS were amended to allow him time for a short notice move back to Canada with TOS ending 30 June 2024.

 

6.      Col Kearney’s Class “C” TOS were subsequently extended, and he was released from the Canadian Forces on 30 November 2024, not because of this offense.

 

7.      Col Kearney has had glowing accolades for his work throughout his career, some of which are attached hereto.”

 

[23]              The Agreed Statement of Facts contained numerous attachments outlining positive performance reviews, the accompanying citations for some of the honours he received, as well as numerous letters of commendation.

 

Circumstances of the offence - Aggravating and mitigating factors

 

[24]              As part of my analysis to decide whether I would accept the joint submission, I have considered the objective gravity of the offence. The offence of conduct to the prejudice of good order and discipline, punishable under section 129 of the NDA, provides a maximum punishment of dismissal with disgrace from His Majesty’s service. It is therefore an objectively serious offence going to the core of the need to maintain a disciplined armed force.

 

[25]           The Court considered the following factors to be aggravating in this case:

[26]            

 

(a)               first, in addition to the objective gravity of the offence, the subjective gravity of the offence – including his senior rank as a colonel and his position as the assistant chief of staff at the Allied Rapid Reaction Corps at the time of the offence;

 

(b)               second, the fact that the offence occurred while he was deployed, representing the CAF on an international exercise with allies;

 

(c)               third, although not made in the presence of BGen Dizewska, the fact that his comment was with respect to a member of an allied force and made in the presence of subordinate members of allied forces from two different nations; and

 

(d)               last, the fact that the nature of his comment was gender-based, crude, and offensive.

 

[26]           The Court also identified the following significant mitigating factors:

 

(a)               first, Col Kearney’s significant and lengthy service in the CAF, including multiple deployments and international postings, as well as fifteen military decorations and awards, all demonstrate an unblemished career until this event;

 

(b)               second, the absence of a negative conduct sheet or criminal record, showing that Col Kearney is a first-time offender;

 

(c)               third, the apology by Col Kearney referenced in the Military Impact Statement, acknowledging his misconduct; and

 

(d)               last, Col Kearney’s guilty plea, which avoided the expense and energy of running a trial and demonstrates that he is taking responsibility for his actions in this public trial in the presence of members of his unit and the military community.

 

Indirect consequences to be taken into account

 

[27]              As part of the indirect consequences that should be taken into consideration, the financial consequences that resulted from the non-renewal of Col Kearney’s Class “C” reserve force contract should be considered. The Court received evidence that his contract was not renewed based on the chain of command’s concern with the behaviour demonstrated by Col Kearney during the incident that gave rise to this charge.

 

[28]              In the case at hand, the Court accepts that Col Kearney has already borne significant financial impacts as a result of this incident.

 

Parity

 

[29]           To determine the appropriate sentence for Col Kearney, I must first identify the objective range of sentences for similar offences. This assessment considers typical offence characteristics, assuming the accused has good character and no criminal record. The sentencing process requires military judges to closely examine past precedents and compare the facts of the case with similar situations. Treating similar conduct with parity is crucial for maintaining discipline in the military context.

 

[30]           In terms of assessing the joint submission, in the context of arguments to demonstrate that the joint submission was within a range of similar sentences for similar offences, counsel brought one court martial case to my attention. The Court has also taken note of three additional court martial cases, many of which were joint submissions.

 

[31]           The case referred to by counsel, R. v. Scott, 2018 CM 2034, a sergeant received a punishment of a severe reprimand after being convicted of three counts under section 129 – all of which had to do with improper comments, one of which was similar to the case at hand, which were made by the sergeant to subordinates in the course of instruction at Primary Leadership Qualification.

 

[32]           The following additional cases were also considered by the Court to assess parity of the sentence, however the facts are not exactly similar:

 

(a)               R. v. Cribbie, 2018 CM 3008, the case of a master corporal military police who made inappropriate comments on Facebook against Jewish people, rabbis, military police and Catholic priests, resulting in a fine in the amount of $1,550 on joint submission;

 

(b)               R. v. Topp, 2023 CM 5016, a warrant officer who made public statements opposing the Government of Canada’s vaccine mandate policy that received national media attention, receiving a severe reprimand and a fine in the amount of $4,000 after a contested sentencing; and

 

(c)               lastly, although the facts relate to an act and not an improper comment, R. v. Russel, 2022 CM 4014, a Col, posted at the NATO Allied Joint Forces Command in Naples, Italy, while commanding all CAF members posted in positions in Italy and Romania, in an effort to be humorous, exposed his buttock to some subordinates and their family members during an unofficial welcome boating event. As a result of a joint submission, the offender received a sentence of a reprimand and a fine in the amount of $500.

 

[32]           Although this is a relatively small sample, these cases show that the sentence jointly proposed by the prosecution and defence counsel in this case, of a severe reprimand and a fine in the amount of $3,000, is well within the range of sentences imposed for similar conduct in the past.

 

Principles of sentencing deserving greatest emphasis/Priority of objectives

 

[33]              Regarding the objectives of sentencing to be emphasized in this case; in the Court’s view, the circumstances of this case require that the focus be placed on the objectives of denunciation and general deterrence in sentencing the offender. This is not a case where specific deterrence is significant.

 

[34]              In terms of the main purpose of sentencing in section 203.1 of the NDA, namely “to maintain the discipline, efficiency and morale of the Canadian Forces”, the sentence proposed must be sufficient to denounce Col Kearney’s conduct in the military community, and to act as a deterrent to others who may be tempted to engage in a similar type of unacceptable behaviour, specifically making remarks that might reflect discredit on the CAF.

 

Sentence to impose

 

[35]              Ultimately, the issue for me to assess as military judge is not whether I like the sentence being jointly proposed or whether I would have come up with something better.

 

[36]              As stated earlier, I may depart from the joint submission of counsel only if I consider that the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest.

 

[37]              In determining whether that is so, I must ask myself whether the joint submission is so markedly out of line with the expectations of reasonable persons aware of the circumstances that they would view it as a breakdown in the proper functioning of the military justice system.

 

[38]              In this case, I do believe that a reasonable person aware of the circumstances would expect the offender to receive a punishment which expresses disapprobation for the failure in discipline involved and has a direct impact on the offender.

 

[39]              The proposed severe reprimand and fine is aligned with these expectations. They meet the objectives of denunciation and general deterrence, without having a lasting effect detrimental to the rehabilitation of the offender.

 

[40]              As recognized by the SCC, trial judges must refrain from tinkering with joint submissions if their benefits can be maximized.

 

[41]              Prosecution and defence counsel are well placed to arrive at joint submissions that reflect the interests of both the public and the accused. They are highly knowledgeable about the circumstances of the offender and the offence, as they are with the strengths and weaknesses of their respective positions.

 

[42]              The prosecutor who proposes the sentence is in contact with the chain of command and victims. They are aware of the needs of the military and civilian communities and is charged with representing the community’s interest in seeing that justice be done.

 

[43]              Defence counsel is required to act in the accused’s best interests, including ensuring that the accused’s plea is voluntary and informed.

 

[44]              Both counsel are bound professionally and ethically not to mislead the Court. In short, they are entirely capable of arriving at resolutions that are fair and consistent with the public interest, as they have demonstrated in this case.

 

[45]              Considering all the circumstances of the case, the circumstances of the offence and of the offender, the applicable sentencing principles, and the aggravating and mitigating factors mentioned previously, I cannot conclude that the sentence being jointly proposed would bring the administration of justice into disrepute or would otherwise be contrary to the public interest and I therefore accept the joint submission.

 

III Conclusion

 

[46]              The circumstances of the offence that you admitted to having committed reveal behaviour that was harmful to military discipline and having been committed in a foreign country amongst allies, risked discrediting the reputation of the CAF as a disciplined and professional armed force. In your role, as the assistant chief of staff, you were implicitly entrusted with a duty to be an ambassador for your country, particularly towards members of allied forces. I do not feel that I need to say more on the subject in your case. I am confident based on the evidence that has been adduced before me today that you fully understand your error and its consequences. It is clear that you accept responsibility as a leader and are committed to moving forward positively.

 

[47]              Although this sentence should serve as a deterrent for others who may find themselves in similar situations in the future, it is my strong belief that this event should not eclipse what has otherwise been an outstanding career for you. Today’s proceedings should be viewed as your formal acceptance of your responsibility, closing off an unfortunate chapter, so that you may proceed to the next chapter of your civilian life away from the CAF, where I am certain you will continue to display the strong leadership and judgment you have demonstrated throughout your career.

 

FOR THESE REASONS, THE COURT:

 

[48]           FINDS Col Kearney guilty of the charge of having committed conduct to the prejudice of good order and discipline, contrary to section 129 of the NDA.

 

[49]           SENTENCES Col Kearney to a severe reprimand and a fine in the amount of $3,000. The fine is payable immediately.

 

Counsel:

 

The Director of Military Prosecutions as represented by Major C.R. Gallant

 

Commander B.G. Walden, Defence Counsel Services, Counsel for Col R.E. Kearney