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Facts Before Outrage

 

Can I ask everyone to put down their torches and pitchforks for a moment, and offer a few reasonable observations and ask a few pertinent questions, before we all head off and figuratively lynch the next General or Flag Officer on whatever lists people are compiling?

Recently, amidst a variety of reports relating to the Canadian Forces (CF), several news media have reported on a matter that transpired four years ago (and had its origins a few years before that): namely the sentencing of a former CF officer for sexual assault and other offences.

The object of the present Blog post is not to evaluate the sentence(s) imposed upon Jonathan Hamilton or to provide an examination of the circumstances of his offences.  Frankly, far too few details have been offered in the news media for such a discussion.  Rather, my focus is on the scale and nature of the outrage expressed regarding the ‘letters of support’ that were offered on his behalf during the sentencing stage of his first trial.  I offer these observations, in particular, in light of the absence of relevant facts and information.

While I am not suggesting that people are ‘wrong’ to hold specific beliefs or views regarding the appropriateness of ‘letters of support’ or other similar evidence offered at sentencing, I am concerned about conclusions that have been drawn in the absence of information.  I am also concerned about misconceptions regarding the ‘appropriateness’ of the types of evidence offered at sentencing and the vilification of legitimate actions taken in the administration of criminal justice.

We can examine some of these principles and factors against the broader backdrop of reporting on the CF over the past few months and the different approaches taken regarding ‘removing’ General or Flag Officers from various positions.

In the present Blog post, I propose to discuss five pertinent points arising from the commentary that I have noted both in the news media and in broader social media, regarding this particular narrative:

  • I will offer a brief description of the narrative that has been presented thus far, and highlight the shortcomings when we draw conclusions in the absence of facts or information;
  • I will briefly discuss the importance of the role of news media in the political and legal spheres;
  • I will describe the nature of sentencing and its relevance to the discussions and outrage that have arisen;
  • I will specifically comment on the nature of ‘letters of support’ that are offered as part of the sentencing process; and
  • I will comment on the impact that the outrage has had following the initial news reports.

 

Introduction

This story first broke on 28 April 2021 by the CBC.[1]

The gist of the narrative offered by the CBC was that former major, Jon Hamilton, had been found guilty in 2017 of six criminal offences, including (as it was characterized in the news report) unlawfully entering the home of the victims, sexually assaulting one of them (Annalise Schamuhn, a retired logistics officer), and, at different times and places, assaulting the other spouse (Kevin Schamuhn).  The news report also mentioned that Hamilton had been a family friend who had known the Schamuhns for several years.

The Schamuhns told Ashley Burke, of the CBC, that they felt betrayed by the fact that senior military officers offered what were characterized as ‘positive character references’ on behalf of Hamilton and they complained that no support was offered to their family.

In particular, Ms Burke’s news report focused on a letter provided by Major-General (MGen) Peter Dawe who was, in 2017, the Deputy Commander of Canadian Special Operations Forces Command (CANSOFCOM) and, at the time that the story broke, was finishing his tenure as the Commander of CANSOFCOM.

The news story also mentioned that Kevin Schamuhn had been a member of CANSOFCOM and had also belonged to the Princess Patricia’s Canadian Light Infantry (PPCLI).  Hamilton, too, was an officer in the PPCLI.  Ms Burke reported that many of the letters written for Hamilton came from senior officers in that regiment.  Much was said about the significance of that regimental affiliation, and I elaborate on that below.

There was a flurry of media activity after the story broke and, within days, MGen Dawe was removed from command of CANSOFCOM prior to his anticipated departure[2], and was subsequently placed on leave[3].  Although it does not appear that he was ‘relieved from performance of military duty’ in accordance with article 19.75 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O), this is not the first time that a General or Flag Officer has apparently been subject to orders that achieve a similar result as ‘relief from performance of military duty’, absent actual reliance on that regulation, or the procedural fairness that is required where that regulation in invoked.

It is likely that many people will recall the ‘kind of, but not really’ relief from performance of military duty that General Vance directed for his (then) Vice Chief of the Defence Staff (VCD), Vice-Admiral (VAdm) Mark Norman in January 2017.  I discussed that issue recently, in my Blog post entitled “Some Observations on Recent Developments in the Canadian Forces”.  For the sake of clarity, I will revisit some of those issues below.

Other news services subsequently picked up the narrative.

David Pugliese, of the Ottawa Citizen, even attempted to bring the Acting Chief of the Defence Staff (CDS) under the spotlight by highlighting that Lieutenant-General (LGen) Eyre is the ‘Senior Serving Patricia’ (although in 2017 he was a Major-General).[4]  I don’t propose to delve into that particular ‘issue’ in detail other than to observe that the focus on that article appears to markedly overstate the role of the ‘Senior Serving Officer’ of a regiment.  The position does not exercise command and control over the various battalions in a regiment, and the focus of such a position is typically on broad regimental matters.  Mr. Pugliese did not offer any evidence that (then) MGen Eyre – who was Assistant Chief Military Personnel (and, simultaneously, Deputy Commander Military Personnel Command) at the material time – was at all involved in that process.

This news story has upset many people.  That is understandable.  People are concerned about sexual misconduct in the CF and sexual offences committed by CF personnel.  They are also concerned about whether senior military leaders are taking the issue seriously enough.

As I indicate at the outset of the present Blog post, my goal is not to evaluate whether the sentence(s) imposed upon Hamilton were appropriate – there is insufficient information publicly available to do so.  My objective herein is to discuss the nature of ‘letters of support’ in the sentencing process and the dangers of jumping to conclusions in the absence or relevant information.  This will necessarily require me to comment on certain aspects of the prosecution of Hamilton (and prosecution of criminal and Code of Service Discipline offences generally).

Many people have commented on the inappropriateness of MGen Dawe’s letter, even though they have not read that letter and the letter was not made public by the CBC or any other news media.  Many have commented on the sentence that Hamilton received, and the potential impact that the letters may have had, without having actually read the judgment relating to the finding of guilt or the reasons for sentencing.  Many people have commented on the relevance of Hamilton’s reported mental health illness and the appropriateness of the judge considering this factor on sentencing.  Again, these comments have generally be offered in the absence of any information regarding evidence of Hamilton’s mental illness, or any meaningful information about the relevance of any mental illness to the specific circumstances of the offences, or the sentence.

In other words, a great many people have expressed marked outrage about actions and decisions by senior CF personnel in the absence of much – or any – relevant information about those actions or decisions.  I have read on social media, diatribes authored by current or former officers or senior personnel which are predicated on a marked lack of information.

That people are outraged about sexual misconduct in general, or Hamilton’s conduct several years ago, is understandable and reasonable.  That they are outraged by a perceived lack of support for specific victims is understandable.  That such outrage arises in the context of the limited information that has been made available through news media reporting is unsurprising.

What is disappointing, however, is the lack of detail that has been offered in this matter and the broad conjecture that has subsequently ensued.  This is not aided by highly selective reporting regarding the paucity of facts presented by the reporters.

I am not suggesting that people are wrong to be outraged by sexual violence or that they should not question the response by senior leaders in the CF. However, in light of the limited information actually presented in the news reports and the marked lack of detail concerning the circumstances of the offences and the nature and content of the letters of support that were obtained by defence counsel, I would want more relevant information before I were to unleash my outrage.

 

Role of the News Media

In our country, the news media play a vital role informing the Canadian public.  They are not the sole source of information for the populace, but, arguably, they represent some of the more reliable sources of information.  I suspect that some people might disagree with that statement.  We live in the information age, which also means we live in a disinformation age.

However, I suggest that it is fair to say that many Canadians obtain information about our socio-economic and political environment, at least in part, from news media (or what some people might refer to, often disparagingly, as ‘main stream media’ or MSM).  Our nation’s discourse is driven, in no small part, by the reporting of national, regional, and local news media.

And in doing so, the news media play a vital role in the health of this nation.  And they can only do so if they have freedom to report on important (and even mundane) aspects of our nation.

I am an ardent supporter of free speech.  Like many Canadians, I have concerns about Bill C-10, currently before the House of Commons (although this Blog post is not about Bill C-10).  I have concerns whenever anyone suggests that a ‘free press’ should be curtailed or fettered.  I become concerned whenever anyone suggests unreasonable constraints on freedom of speech.  Freedom of speech is a fundamental and vital component of a free and democratic society and, arguably, is as important as the right to vote.  Free speech is a necessary component of the electorate’s ability to stay informed and to exercise their democratic rights in a meaningful manner.  And ‘freedom of the press’ is a vital component of that paradigm.

And, just as impairment of free speech will adversely affect meaningful democratic discourse, the dissemination of partial information can have a similar impact.  In the information age, disinformation and misinformation (two distinct factors) can impair meaningful discourse and debate.  While the dissemination of incomplete information does not necessarily or always rise to the level of disinformation, such lacuna can still impair meaningful discourse.

And I contend that some of the outrage that has arisen over the matter discussed in this Blog post has its origins in the lack of relevant information conveyed in the news reports relating to this subject.  And I suggest that this observation can be extended to much of the reporting on the CF over the past few months.

From time to time, I offer commentary to journalists regarding matters that lie within my expertise or knowledge – specifically, ‘military law’ or public law that falls within the military context.  I do so in an effort to help ensure that their reporting accurately reflects the relevant law.  (Although, I imagine some people might posit that it reflects my perception of the relevant law, which is a fair observation.)  A journalist, who is an acquaintance of mine, once commented to me that, in offering criticism of journalists, I might create a chilling effect that would dissuade them from seeking my input in future matters.  And my acquaintance had a valid point.

However, I contend that, were I to censor myself based upon such concerns, it would do a disservice to my goal of conveying accurate commentary on ‘military law’ in order to contribute to meaningful discourse and debate.  It would also represent an untenable lack of integrity on my part.

The Canadian news media play a vital role in illuminating matters and issues that are, or ought to be, of concern to the Canadian populace.  They are augmented, and often amplified, by other sources of information, such as social media.  In addition to informing Canadians, the news media will often subject government and other public actors to scrutiny and criticism.  In so doing, it is not uncommon for news media to represent a more effective opposition or critique of government than Her Majesty’s Loyal Opposition in the House of Commons.  As I say: this scrutiny and criticism is an important function in a free and democratic society.

However, when they do so, the news media, themselves, take on a public role.  And that public role is also open to scrutiny and criticism.  That does not mean that freedom of the press ought to be fettered.  If you’ll pardon the use of an American example (and our American cousins tend to have a much more liberal view of freedom of speech): as Justice Louis Brandeis famously opined in Whitney v California, 274 US 357 (1927), “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.”

In other words, the solution for ‘false speech’ or ‘inadequate speech’ is ‘more speech’ (and, perhaps, the odd action for defamation when necessary).

Therefore, if, as I perceive in the present circumstance, the ‘mob’ appears to be fuelled by less than complete information, I feel compelled to point out that, perhaps, before we start gathering nails and 2”x4” for a public crucifixion, we might wish to turn our attention to the information that we do not have.

In this particular case, the public does not appear to have knowledge of the contents of any of the letters that were provided to the court by Hamilton’s defence counsel, nor has there been any direct reference to the judge’s reasons for sentencing.

 

Sentencing under the Criminal Code

I would like to elaborate on the nature of sentencing in such matters, as that may assist some people in coming to terms with what may seem like a marked dissonance between the offences enumerated in the news media on one hand, and the purported letters that were proffered and the eventual sentence on the other hand.

First, very little information has been provided regarding the circumstances of the offences in which the Schamuhns were victims.  The CBC reported that Hamilton was charged with six offences in total, including two counts of sexual assault, two counts of assault, and at least one count of being unlawfully in a dwelling house (presumably the sixth charge was a second count of unlawfully being in a dwelling house).[5]

These are offences under sections 271, 266, and 349, respectively, of the Criminal Code[6].  All of these offences are ‘hybrid’ offences, meaning that the Crown can proceed summarily or by indictment.  The Crown proceeds summarily where the offences fall at the lower end of seriousness for that particular offence.  The maximum sentence, and therefore, sentencing range, increases significantly if the Crown proceeds by indictment.  The news reports do not indicate whether the Crown proceeded by indictment.  What we do know is that the offences were tried in the Ontario Court of Justice (Provincial Court).  That is not determinative of the Crown’s election.  Hybrid offences, where the Crown elects to proceed by indictment, may be prosecuted in Provincial Court or the Superior Court of Justice.  The accused may elect to proceed in Provincial Court before a judge sitting alone even if the Crown proceeds by indictment.

In light of the scope of offences charged, and the nature of the allegations (at least what was described in the news reports) it is possible that the Crown proceeded by indictment and Hamilton elected to be tried by judge alone in the Provincial Court.  However, this is but one example of relevant information that was not included in the media reports on this matter, and where we can only speculate.

According to the CBC report, Hamilton was found guilty on all six charges described above and was sentenced to ‘probation’.  I suspect the actual sentence was a suspended sentence, which included a period of probation.  Other than a fine, this is one of the lowest sentences that can be imposed on an offender.  In light of the scope and nature of the charges for which Hamilton was found guilty, on its face, that sentence might seem remarkably light.

Indeed, to some observers it might seem unreasonably light.  I have seen comments on social media suggesting that part of the outrage from some people arises from a belief that the sentence for Hamilton’s first conviction was not sufficiently severe, and that this was due to the ‘letters of support’ that he received.

And I suggest that this is illustrative of the problems that can arise from a paucity of information when such matters are brought to the attention of the public by the news media.  There is not a great deal of factual context provided in the initial media report, and the subsequent reports, from various news media sources, have done little to remedy that factual lacuna.  They have, however, done a great deal to fan the flames of outrage in the absence of further facts.

More than two weeks have passed, and the public still does not have any reliable details regarding the actual content of MGen Dawe’s letter.  More to the point, none of the members of the public expressing outrage over the letter have been in a position to read the letter.  Nor have the reasons for sentencing been made public by the news media.

Technically criminal proceedings are public.  However, it appears that not many in the media or the CF took much notice of Hamilton’s trial in 2017.  They certainly have now.  Most OCJ judgements are not reported – by which I mean that they are not published in legal ‘reporters’ (i.e. collections of case judgments) or databases.  Someone attempting to research this judgment would not find it on CANLII (the Canadian Legal Information Institute, an open-source legal database) or subscription services like WestLaw.  They would have to request a copy of the transcript from the court.

Also, it is worth noting that, for some prosecutions of sexual assault or similar offences, a Publication Ban could be ordered by the court.  In some cases (such as offences involving young persons) a Publication Ban is mandatory.  It is unclear from the news reports whether a Publication Ban was issued in the proceeding relating to the Schamuhns.  Based upon what was conveyed, I suspect that there was no ban; and, in any event, the Schamuhns have spoken publicly about the proceeding.  However, where Publication Bans are ordered, it can inhibit discussion of cases where victims and witnesses have already identified themselves.

Although the reasons for sentencing have not been provided in any of the news media reports to date, there are some conclusions that can be inferred from the scope of the offences for which Hamilton was found guilty and the sentence that was imposed.  Such conclusions would be predicated upon the principles of sentencing under the Criminal Code.

The ‘fundamental principle’ of sentencing is that a “… sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”[7]  A sentence should be increased or reduced to reflect aggravating or mitigating circumstances relating to the offence or the offender.[8]  Also, “… a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”.[9]  Thus, ‘reported’ reasons for sentencing in other, similar matters, will play an important comparative role in sentencing.  And, unlike the recent news reports concerning Hamilton, those reported judicial reasons will tend to convey specific and significant relevant facts.

I have acted as defence counsel in similar matters, not just in the OCJ, but in Kingston’s OCJ.  I have made submissions on sentencing in sexual assault cases.  I can state with a degree of confidence that, despite the sentencing principle that “… an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances …”[10], a period of imprisonment is not uncommon where an offender has been found guilty of sexual assault.

I note, tangentially, that some commentators have used the term ‘rape’ when discussing this matter.  The Criminal Code does not, presently, include an offence of ‘rape’, and has not for nearly 40 years.  In his trial before the OCJ in 2017, Hamilton was found guilty of two counts of sexual assault.  Sexual assault can be described as the application of force to another person, for a sexual purpose, without the consent of that person.  It covers a very broad range of misconduct from touching another person briefly, for a sexual purpose, where both persons are clothed, to non-consensual sexual intercourse.  In this particular circumstance, the news reports did not provide many details about the sexual assaults for which Hamilton was found guilty.

The aforementioned description of sexual assault is not intended to diminish the significance of the offence.  Regardless of the scope and scale of misconduct, sexual assault is a criminal offence and a violation of a victim’s physical integrity.  However, objectively, there is a not-insignificant scale of misconduct relating to that offence, which is directly relevant to sentencing when a person is found guilty of the offence.

The challenge with any reasonable and objective discussion regarding the relevance or impact of the so-called ‘character references’ that were offered for Hamilton’s sentencing, is that the public has been provided very few relevant factors relating to mitigation or aggravation of the sentence.  Indeed, the initial CBC news story offered very little context by which the casual observer could draw any reasonable conclusions about such factors, and subsequent news reports have done little to offer further details.

One of the most significant mitigating factors in such prosecutions is a guilty plea by the offender.  This is significant, as any person charged with a criminal offence has the right, protected under sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms (Charter), to be presumed innocent and to be punished under our criminal justice system only if the Crown can prove the accused’s guilt beyond a reasonable doubt.  By pleading guilty, the accused – who then is viewed as an offender – essentially waives that Charter right.

A guilty plea can demonstrate contrition.  It also obviates the requirement for the victim to testify.  In matters such as sexual assault, this can be a significant factor to consider for sentencing.  Remember: the accused – any accused – has a right, guaranteed by the Charter, to make full answer and defence to any criminal charge.  A guilty plea also relieves the criminal justice system of the burden in terms of time and resources dedicated to conduct a trial.  A guilty plea – particularly an early guilty plea – is one of the most significant mitigating factors that could be considered by a sentencing judge.

But Hamilton did not plead guilty.  The charges in Hamilton’s case were contested at trial.  He did not benefit from this significant mitigating factor.

So why was Hamilton sentenced to, presumably, a suspended sentence and probation?  The blunt reality is that, based upon what has been reported thus far by the news media, the public has very little information regarding that question.  And it seems that those gaps in information are part of the reason for the outrage.  People are upset because of a seeming dissonance between the offences and the sentence, even though the public has very few details regarding either the offences or the sentence.

Based upon the sentencing principles described above, it was likely that there were either significant mitigating factors and/or the gravity of the offences, particularly the charges regarding sexual assault, was at the lower end of the broad spectrum described by the offence.  In the absence of relevant information, any conclusions would be based upon broad speculation.

 

Letters of Support

That said, I suspect that there may well be many people who would contend that the specific facts of the offences, including the mitigating or aggravating factors, are not materially relevant to the issue of the ‘letters of support’.  They may well assert that no one should have written what were characterized as ‘character references’ for Hamilton.

That, I suggest, would be a problematic assertion.

Letters of support are routinely sought from employers for the purposes of sentencing where a person is found guilty of a criminal offence or offences.  They are also sought for sentencing under the Code of Service Discipline.  Although a member of the CF is not in privity of contract with the Crown and is not, technically, an employee as that term is typically defined, commentary from a person’s chain of command is analogous to comments from an employer.

There is nothing inappropriate about defence counsel obtaining letters of support or letters of reference from an offender’s employer regardless of the offences for which the person is found guilty, including the offence of sexual assault.  Defence counsel will routinely seek such information in advance of sentencing.  The same principle applies when the offender is a member of the CF.  In order to assist a judge in determining an appropriate sentence, all relevant information must be placed before the judge.  Suggesting that relevant information should not be provided to a sentencing judge runs contrary to the principles of sentencing described above.

Suggesting that the principles of sentencing should be ignored is akin to suggesting that the rule of law should not be respected.  And, as we know from the Department of National Defence and Canadian Forces Code of Values and Ethics, respect for the rule of law is one of the fundamental ethical principles of Canadian society to which the CF subscribes.

I suspect that some people may then be quick to point of that respect for the dignity of all persons is also an ethical principle conveyed in that same policy document.  I agree.  But I also suggest that there has not been much information offered by which people might conclude reasonably that this principle was not respected in the letters that were offered in the criminal proceeding, or in the criminal proceeding itself.

There appears to be a suggestion in many comments that there was somehow a miscarriage of justice and that the letters were part of such a miscarriage of justice.  However, absent many material facts, I am at a loss as to how anyone might reasonably conclude that there was either a miscarriage of justice or that the letters played such a role.

There is nothing inappropriate about a CO or other member of the chain of command providing a letter to the court on sentencing.  In a proceeding before a civil court of criminal jurisdiction, a CO is not obliged to do so.  Some letters of support may be lukewarm (e.g. ‘damning with faint praise’).  It is possible that a CF member, found guilty of sexual assault by a civilian court of criminal jurisdiction (or, indeed, any criminal offence unrelated to the CF members actual duties), performed his or her typical duties and functions as a member of the CF exceptionally well.  And there is nothing improper or inappropriate if a CO were to provide a letter to that effect.

Such comments may not have significant impact on the eventual sentence – people can perform their jobs well (whether they are military or civilian) and still perpetrate objectionable offences.  Professional or technical proficiency may not be a significant mitigating factor.

Where defence counsel submit letters describing an offender’s exemplary technical performance in their profession or job, it would be open to the Crown to argue that it doesn’t matter if the offender is an exemplary employee, if he or she has been found guilty of sexually assaulting another person.  The Crown could argue that the offender’s technical proficiency or merit is largely irrelevant regarding the criminal misconduct.  But that does not render it inappropriate for the defence counsel to seek such letters or for an employer or commanding officer to provide such a letter.  The issue is the degree of relevance and weight that the commentary would have on the sentence.  And that is a decision for the sentencing judge.

Typically, such letters will not be initiated by a CO or another member of the chain of command.  Usually, the defence counsel will ask for them, either by contacting the CO (or the CO’s legal advisor), or the CF member will ask his or her chain of command at his or her counsel’s urging.

Where the offender is a member of the CF, defence counsel might also seek a letter indicating the likely administrative outcome following conviction in a civilian court of criminal jurisdiction.  For example, if a CF member is convicted of sexual assault before a civilian court, an Administrative Review under Defence Administrative Order and Directive (DAOD) 5019-2 will be initiated.  Based upon my own, not-inconsiderable experience with such matters, I can suggest that it is highly likely that the Administrative Review will result in a compulsory release under item 2a on the Table to article 15.01 of the QR&O.  While Director Military Careers Administration (DMCA) technically exercises discretion regarding the outcome of such an Administrative Review, those are largely conducted as boiler-plate processes and, where a CF member is convicted of sexual assault, a compulsory release under item 2a is a near certainty.[11]  See, for example: A Word or Two on Release Items in the Canadian Forces.

Such an outcome – the near-certain compulsory release under a regime that would preclude not only re-enrolment in the CF, but any future employment by the Federal Public Administration – will be relevant for sentencing.

Quite frankly, I suggest that, in circumstances such as those faced by Hamilton, the letters of support were less significant in the context of sentencing than the Pre-Sentence Report (PSR) that was inevitably obtained after he was found guilty at trial but before he was sentenced.

In her report, Ms Burke does not mention a PSR.  Neither do any of the journalists who followed suit.  However, I would be surprised if a PSR had not been sought, obtained, and presented to the sentencing judge.

For many offences – particularly serious offences or where an accused faces complex or nuanced circumstances, including youthfulness, mental health issues, or potential imprisonment – the court will often order a PSR.

Probation Officers will interview the offender (no longer an accused, as he or she has been found guilty), family members (particularly, though not solely, for young or youthful offenders), the victim or victims (and, potentially the family of the victim or victims), and other relevant persons, such as employers.  The Probation Officer obtains relevant information, compiles a report, and provides recommendations.  The report is given to the court, the prosecutor, and the offender (or the offender’s counsel).

Counsel (both prosecutors and defence counsel) may also obtain and provide letters or other documentary information.  The Crown will obtain copies of the offender’s criminal record, if relevant, as well as a Victim Impact Statement (VIS) from the victim or victims.  The victims(s) may read the VIS at the sentencing.  Typically, much of this information will be provided to the court in advance of the sentencing hearing, to permit the judge to review the documents in advance.

As an aside, what transpires in a civilian court of criminal jurisdiction is not markedly different from what transpires at a court martial.  In the early stages of a court martial, pursuant to article 111.17 of the QR&O, the accused’s commanding officer will provide the military prosecutor with: a certified copy of the accused’s conduct sheet, if any; a statement as to particulars of service of accused (i.e. information relating to the accused’s current circumstances, a template of which is provided at article 111.17); a certified copy of the accused’s certificate of service (i.e. his or her Military Personal Record Resume or MPRR); and, a certified copy of the accused’s pay guide.  Victims are permitted to provide VIS (arts 112.48 to 112.485 of the QR&O).  Note that, pursuant to article 111.17 of the QR&O, input from the accused’s commanding officer is mandatory.

Defence counsel will obtain whatever information the counsel believes is relevant to sentencing.

As I have said throughout this Blog post, there is a marked paucity of facts regarding the eventual significance of any letters of support.  However, a few people have suggested that it was wrong for MGen Dawe or any other officer to write a letter of support – regardless of the actual content of the letter.  And, there, I have to disagree.

As I mention above, the suggestion that a CF member, found guilty of sexual assault, does not merit the opportunity of presenting evidence relating to sentencing, is contrary to the principles of sentencing.  Moreover, the hue and cry raised when it was revealed that one or more senior officers provided letters to the court – when the contents of those letters remain unknown – can create a chilling effect on that legitimate part in the sentencing process.

While the relevant information in the Hamilton matter was not published, there is a relevant comparator under the Code of Service Discipline, and the judgment regarding the finding of guilt and the reasons for sentencing have been published.  In 2019, Corporal (Cpl) Cadieux, an operator with the Canadian Special Operations Regiment (CSOR) was found guilty of sexual assault and drunkenness (R v Cadieux, 2019 CM 2011) and was sentenced to 60 days’ detention and a severe reprimand, as well as the mandatory ‘DNA order’ and ‘SOIRA order’ (R v Cadieux, 2019 CM 2019).  The period of detention was suspended.  That sentence was not markedly dissimilar to the sentence imposed on Hamilton by the Ontario Court of Justice in 2017.

Cadieux’s victim was another member of the CSOR.

Various members of the chain of command testified at sentencing.  They spoke of Cpl Cadieux’s accomplishments in the CF, and the respect for him that had been demonstrated by members of his unit, and by allies.  A video of a firefight in Afghanistan was presented to demonstrate both the nature of his role as a Special Forces Operator and his personal valor:

Warrant Officer Roy testified that he was Corporal Cadieux’s section commander in Afghanistan and described Corporal Cadieux as one of the best soldiers he ever had. He described him as very calm and effective under fire and capable of receiving quick contingency orders under extreme stress and being able to execute the orders without exception. The Court also had the opportunity to view a few minutes of a video taken of their section during a firefight in Afghanistan that lasted five hours. In the video, both Warrant Officer Roy and Corporal Cadieux could both be seen as they brought to cover one of their wounded section members. Corporal Cadieux provided body cover to the live fire while they extracted their fellow soldier.[12]

Supervisors, peers, and people close to Cpl Cadieux spoke of his mental health issues and challenges with medication.  They spoke of the rumours that circulated when the allegations against Cadieux were being investigated.  Both Cadieux and one of his supervisors described that “… news agencies sensationalized the charges and significant name calling and labelling within the surrounding community followed.”[13]  They testified that “… someone placed a very damaging news article on the windshield of Corporal Cadieux’s then-girlfriend.”[14]  His reputation was immediately and irreparably tarnished within the small military community, as well as within the surrounding civilian community.[15]

Evidence was presented to the court martial regarding Cpl Cadieux’s alcohol and drug dependency.  A Medical Diagnostic Assessment was presented.  Evidence was also presented regarding the impact of his eventual release from the CF.

In other words, a variety of mitigating (and aggravating) factors were presented to the court martial.  The presiding military judge observed:

Recognizing the challenge here, the court appreciates what the chain of command faced in balancing the interests of the offender with the victim within the same unit. They owed a duty of care to Corporal Cadieux as a soldier suffering and who needed help, but they also had to consider that he did something that seriously offended another soldier for which they also had a duty to of care. It is very important to recognize the challenge they faced because, we are often too quick to criticize and say, the chain of command did not support me or they made me feel isolated.[16]

And there was nothing wrong with various members of his chain of command coming forward to testify on behalf of Cpl Cadieux.  It was not a betrayal of the victim for them to do so.  It was a relevant part of the sentencing process.

And the victim was also permitted to offer a statement regarding the impact of the offence on her.  And this statement was clearly factored into the sentencing process, and rightfully so.  And the chain of command had a role to play there as well.  Indeed, the military judge observed:

I am glad to see the chain of command present. One of the recurring points that victims mention is that after reporting a sexual assault, they feel their chain of command treats them differently. There is no easy answer. These are difficult problems and not easy to manage, but in knowing that this is a consistent message that is coming from victims across the CAF, I think the chain of command needs to be aware of this fact and seek feedback from the victims to find out what it is that would have made them feel more comfortable. From what this court is hearing, the mere fact of reporting is the most stressful on a victim. In fact, sometimes it is not the incident itself that causes the problem; it is the actual process of reporting and the fact that they now feel extremely self-conscious about everything they do and say.[17]

And one of the aggravating factors presented at this court martial was that, three years earlier, Cpl Cadieux had been convicted of Injurious handling of dangerous substances, contrary to s 127 of the NDA, and had been sentenced to 21 days’ imprisonment.[18]

I do not present the comments above, relating to the court martial of Cpl Cadieux, to suggest that the sentence imposed on former Major Hamilton was appropriate or not.  Indeed, unlike the published judgment and reasons for sentencing in the Cadieux court martial, there are very few facts publicly available relating to the prosecution of Hamilton before a civilian court of criminal jurisdiction.

My point is that, just as it was not inappropriate for Cpl Cadieux’s superiors to testify on behalf of Cadieux regarding potential mitigating factors, it was not inappropriate for various officers to offer letters to the court for Hamilton’s sentencing.

 

Relief from Performance of Military Duty – Sort of …

Within four days of the initial CBC story, MGen Dawe was removed from command of CANSOFCOM by the Acting CDS and placed on leave ‘indefinitely’ “… amid mounting anger …”.[19]  As I mention above, that mounting anger can be linked to the various news reports that offered scant details about the matter that was the source of this anger.  And, while it had already been announced that MGen Dawe would be posted to the position of Director General International Security Policy (DGISP), as a result of the “… mounting anger …” the Acting CDS opted to announce that he would move MGen Dawe to that position earlier than anticipated.[20]  Two days later, he was put on leave indefinitely.

If this awkward-seeming means of relieving a General Officer of performance of military duty sounds familiar, that’s likely because it is.  A similarly awkward decision was made a little over four years ago when the then CDS, General Vance, purported to – possibly – relieve his VCDS, VAdm Mark Norman, of performance of military duty.  Frankly, it is still not clear what was done back in January 2017.  The only thing that was, or is, clear, was that a Flag Officer was somehow removed from a position under a process that was not well articulated.

Various news media outlets reported on 16 January 2017 that the (then) VCDS, VAdm Norman, had been ‘relieved of his duties’.[21]  Lieutenant-Colonel (LCol) Jason Proulx, the spokesperson for the (then) CDS, stated: “The CDS has temporarily relieved the VCDS, VAdm Mark Norman, from the performance of military duty…”.[22] Even the Minister of National Defence used the expression ‘relieved from performance of military duty’ when describing the actions taken by the CDS (General Vance) in removing VAdm Norman from his position.[23]  However, that’s not exactly what the CDS’ letter stated.

The letter, dated 13 January 2017, and reported by several media sources, stated:

 Effective immediately and until further notice, Vice-Admiral M.A.G. Norman will not exercise the powers, duties and functions, including command of the Vice Chief of the Defence Staff (VCDS). I hereby appoint Vice- Admiral M.F.R. Lloyd to exercise all of the powers, duties and functions of the VCDS, including command, on an acting basis.

Just as with the current circumstances faced by MGen Dawe, there was no mention of Article 19.75 (or Article 101.09) of the QR&O.  These ministerial regulations (the former under the administrative volume, the latter under the disciplinary volume, which would not appear to apply to MGen Dawe) form the basis for the last-resort measure that results in stripping a member of the Canadian Forces, regardless of rank or position, of all military duties.  More particularly, the CDS order clearly indicated that VAdm Norman was removed from his position as the VCDS. Whether he was relieved from performance of military duty was a distinct issue and was more ambiguous.

So, either LCol Proulx misstated what the CDS had done, or his comments truly reflected the CDS’ intent, but the content of the CDS’ order was deficient. It was not clear at that time which of those two conclusions reflected the reality of the situation.

Had the intent been to relieve VAdm Norman from performance of military duty in accordance with QR&O article 19.75 (or article 101.09), the CDS would have been obliged to provide VAdm Norman with sufficient reasons for his actions, and an opportunity to make meaningful representations, as is required under sub-article 19.75(6) (or sub-article 101.09(5)).

In retrospect, it now appears (although it remains uncertain) that the CDS removed VAdm Norman from his position as VCDS and assigned no further duties.  While the CDS’ actions may have had a similar practical effect to ‘relief from performance of military duty’, it appears that the CDS had relied on neither article 19.75 nor article 101.09 of the QR&O.  Although the position of VCDS is created, expressly, by the NDA, the appointment of an officer to that position falls within the CDS’ authority.

With MGen Dawe, it appears that the Acting CDS (and perhaps the legal officers who advise him and the Minister) learned a lesson from the ambiguity and imprecision regarding the mishandling of VAdm Norman’s ‘relief of duty’ – or whatever it actually was.  Instead, “… amid the mounting anger …” arising from the incomplete narrative presented by news media reports, the Acting CDS ordered MGen Dawe on indefinite leave.

I am certain that, if asked whether he had, in fact, relieved MGen Dawe from performance of military duty, the Acting CDS would assert that, no, he merely ordered him on leave.  Indefinitely.

Then there is the report of even more recent action taken regarding MGen Dany Fortin.[24]  Vague reference has been made to unspecified sexual misconduct prior to 2015.  The action taken against MGen Fortin is equally vague.  After a discussion with Acting Chief of the Defence Staff, LGen Eyre, MGen Fortin is ‘stepping down’ from his position leading the logistics for vaccine delivery relating to COVID-19.

Although MGen Fortin appears to have been accused of some form of sexual misconduct, MGen Dawe was not accused of any such misconduct.  He was ‘accused’ of offering a letter as part of the sentencing process before a civilian court of criminal jurisdiction.

While MGen Fortin purportedly ‘stepped down’, MGen Dawe was, according to news reports, ‘removed’ from his position of Commander CANSOFCOM and placed on indefinite leave.  While the term ‘relief from performance of military duty’ was not used, the effect seems quite similar.  It remains unclear when, and if, any procedural fairness was involved.  What does appear to be clear is that the decision regarding MGen Dawe arose from the public outrage that was predicated upon markedly limited information.

 

Conclusion

This Blog post is not about whether the sentence imposed on Jon Hamilton in 2017 was appropriate.  Neither is it about Hamilton’s actions or misconduct.  The focus of this post was on whether it was inappropriate for any senior officer to offer evidence to the Provincial Court judge who sentenced Hamilton following his finding of guilt.  This post was also about the outrage that arose in the absence of a significant amount of relevant information.

Absent any information regarding the specific contents of those letters, absent any meaningful information about the impact of the letters on the eventual sentence, and absent any meaningful information about the reasons for the sentence, many people appeared to register outrage that MGen Dawe or any other senior officer would have offered ‘letters of support’.

I would not presume to tell people what they must feel – and much of the outrage has been driven by what people ‘feel’ – what they must think, or the value that they should place on certain decisions or acts.  However, what I will suggest is that, when a member of the CF is found guilty of a criminal or Code of Service Discipline offence – whether before a civilian court of criminal jurisdiction or a court martial – it is not uncommon for one or more superiors to offer either testimony or letters that could be taken into consideration by a sentencing judge.  Indeed, in a court martial, the accused’s commanding officer is obliged to provide a statement of service to the military prosecutor.

This testimony and these letters could touch upon the CF member’s history in the CF, the CF member’s performance during his or her career, the personal or professional challenges faced by the CF member, or even the anticipated impact that the finding of guilt or conviction may have on the CF member’s career (including the eventual termination of that career).  All of these factors are relevant to the ‘circumstances of the offender’.  All of these factors could be relevant to the sentence and would be weighed by the sentencing judge.

And this information represents only some of the relevant information that must be considered under the principles of sentencing.  And they may not even be the most significant factors.  Other relevant factors could include: a PSR compiled by a neutral third party; medical assessments, particularly where the offender has been diagnosed with mental illness or dependency; steps that the offender has taken to remedy any underlying problems; and, the severity and the circumstances of the offence(s).

Two of the most important factors will be the impact of the offence(s) on the victim(s) – which is directly relevant to the blameworthiness of the conduct – and the degree and sincerity of contrition or remorse expressed by the offender (if such contrition or remorse is expressed).

All of these factors will be considered by a sentencing judge when applying the principles of sentencing.  And the sentencing judge will attribute different weight to each of these factors and will include such explanation in her or his reasons for sentence.  And the public will be able to have an appreciation of the weight and relevance of each of those factors on the sentence based upon the reasons offered by the sentencing judge.

Unfortunately, where such information is not publicly available, conditions can be set for the expression of outrage by members of the public, driven, in part, by the absence of relevant information.

In the specific circumstances described in this Blog post, many people will have formed their opinion or conclusions regarding whether MGen Dawe, or other officers, ought to have proffered letters to the court.  It is not my objective to try to dissuade anyone from a conclusion they have already drawn.  However, I do observe that the outrage that has been expressed appears to have been voiced in the absence of knowledge of the content of any of the letters, or the reasons for the sentence imposed by the trial judge.

I find that problematic.

I also find it problematic that people might suggest that there is something improper about offering relevant information to a sentencing judge or that a person ought to be vilified for doing so – particularly where the information that was offered has not been disclosed publicly.

I find it problematic that people would, for all intents, attack a legitimate and reasonable process relating to sentencing for criminal offences, and would do so absent much relevant information.  It suggests selective respect for the rule of law.

It is understandable that people might be outraged regarding claims that serving or former CF personnel, who were victims of such offences, were not supported by senior members of the CF.  However, I hasten to add that, as illustrated by the Cadieux court martial, the fact that support is offered to an offender in terms of relevant comments about the offender’s service does not equate to an absence of support for the victims.  Where offender and victim are both members of the CF, the chain of command faces a need for balance.

And, in the absence sufficient factual context, assertion that such balance was neither sought nor obtained is merely that: an assertion.

This subject matter, and these specific circumstances, are highly emotive.  People’s reactions to the news reports are understandable.  And, while no one is obliged to agree with me, I do caution against a rush to judgement regarding the actions of CF leaders in the absence of relevant information, or consideration of the relevant legal principles.

 

[1] Ashley Burke and Kristen Everson, “Sexual assault victim’s family denounces military brass for supporting attacker during sentencing”, (28 April 2021), online: CBC News <https://www.cbc.ca/news/politics/military-sexual-assault-1.6004040>.

[2] Ashley Burke, “Commander of Special Forces to be replaced early after apologizing for handling of sexual assault case” (30 April 2021), online: CBC News <https://www.cbc.ca/news/politics/commander-special-forces-peter-dawe-apologizes-open-letter-1.6008705>.

[3] Sean Silcoff, “Special Forces commander placed on leave for supporting soldier convicted of sex assault” (2 May 2021), online: The Globe and Mail <https://www.theglobeandmail.com/politics/article-special-forces-commander-relieved-immediately-for-supporting-soldier/>.

[4] David Pugliese, “Defence chief was top officer responsible for regiment when it supported sex offender”, (4 May 2021), online: Ottawa Citizen <https://ottawacitizen.com/news/national/defence-watch/defence-chief-was-top-officer-responsible-for-regiment-when-it-supported-sex-offender>.

[5] Ashley Burke, n 1.  The CBC news report asserted that Hamilton unlawfully entered the Schamuhn’s home.  The offence that appeared to have been charged, in two separate counts, was ‘being unlawfully in a dwelling-house’.

[6] Criminal Code, RSC 1985, c C-46.

[7] Id, s 718.1.

[8] Id, para 718.2(a).

[9] Id, para 718.2(b).

[10] Id, para 718.2(d).

[11] A CO would not be in a position to state, definitively, that a CF member under the CO’s command would be released by DMCA.  However, a CO could indicate that an Administrative Review would be conducted as well as indicate what the CO would recommend for an outcome (e.g. compulsory release).  That is not really a ‘character reference’.  Indeed, it’s not even a ‘letter of support’ since it tends to indicate an outcome adverse to the subordinate’s interests.  But it is relevant on sentencing, as it indicates that the finding of guilt will not only lead to a sentence under the Criminal Code sentence, but loss of lucrative employment and, if it is a release under ‘item 2a’, it will likely preclude any future employment with the Federal Public Administration.

[12] R v Cadieux, 2019 CM 2019, para 35.

[13] Id, para 48.

[14] Id.

[15] Id.

[16] Id, para 30.

[17] Id, para 27.

[18] R v Cadieux, 2016 CM 4008.

[19] Christian Paas-Lang and Ashley Burke, “Special Forces commander put on leave as acting top soldier apologizes for handling of situation”, (2 May 2021), online: CBC News <https://www.cbc.ca/news/politics/special-forces-commander-on-leave-1.6011036>.

[20] Ashley Burke, n 2.

[21] The Canadian Press, “Vice chief of defence staff Mark Norman removed from post”, (16 January 2017), online: Maclean’s Magazine <https://www.macleans.ca/politics/vice-chief-of-defence-staff-mark-norman-removed-from-post/>.

[22] David Pugliese, “Second-highest ranking officer in military relieved of command in unprecedented move”, (16 January 2017), online: Ottawa Citizen <https://nationalpost.com/news/canada/vice-chief-of-defence-staff-mark-norman-removed-from-command>.

[23] Murray Brewster, “Mark Norman, outspoken military vice-chief, relieved of duty without explanation”, (16 January 2017), online: CBC News <https://www.cbc.ca/news/politics/norman-military-relieved-1.3937401>.

[24] Murray Brewster, “Fortin out as Canada’s vaccine campaign lead amid military probe into sexual misconduct claim, sources say”, (15 May 2021), online: CBC News <https://www.cbc.ca/news/politics/fortin-military-investigation-removed-1.6027995>.

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