Friday, February 2, 2024

Choking a superior is a Code of Service Discipline offence

On 31 January 2024, the Times Colonist newspaper in Victoria reported on a court martial in which a Leading Seaman (described as a Sailor, First Class) pled guilty to an offence under s 84 of the National Defence Act (NDA), "struck a superior", and was sentenced to 14 days detention at the Canadian Forces Service Prison and Detention Barracks (CFSPDB) and a reprimand.

While the full judgment in R v Thoo, Court Martial Docket 202322 is not yet available publicly, the Chief Military Judge website does provide some general information.   The article from the Times Colonist provides greater detail.

Leading Seaman Thoo had been out at a bar with a colleague, a female Master Seaman (described as a Mater Sailor), who was also his supervisor.  (A Master Seaman is one rank higher than a Leading Seaman.)  Both were part of the Ship's Company of HMCS Ottawa.  At the time of the assault, both were staying in quarters at CFB Esquimalt, specifically "Tribute Tower".

A security video in the common area near the elevator of the quarters recorded the image of Thoo lunging at his supervisor with both arms outstretched, and striking her in the throat. She was pinned against the wall with Thoo’s forearm on her throat.  The video showed the fight continuing until someone exited an elevator near them. At that point, Thoo got up and walked out of camera view, then returned to help his supervisor up off the floor.

Leading Seaman Thoo was evidently significantly intoxicated.  He exhibited remorse for his actions.  However, he had a prior conviction for "drunkenness" under s 97 of the NDA, as well as three other non-violent and low level service offences, and there was no evidence that he has sought any treatment for alcohol abuse or misuse.  His victim was traumatized by the attack.

Leading Seaman Thoo was charged with two counts: Charge #1 - struck a superior, contrary to s 84 of the NDA; and, Charge #2 - assault, contrary to s 266 of the Criminal Code, prosecuted under s 130 of the NDA.  Leading Seaman Thoo plead guilty to Charge #1 and was found not guilty of Charge #2 (presumably because the military prosecutor opted to call no evidence in favour of that charge as part of the joint submission).

There are at least a couple of noteworthy points regarding this matter.  First, it is yet another example that Canadian Forces (CF) leadership and military judges continue to use rank designations for naval personnel that have not yet been approved by the Governor in Council as required under s 21 of the NDAArticle 3.01 of the Queen's Regulations and Orders for the Canadian Forces (QR&O) remains unchanged.  Indeed, the Governor in Council has still not changed the name of the QR&O to the KR&O in article 1.01 of the QR&O, notwithstanding that the late Queen Elizabeth II, of blessed memory, died over a year ago.

For greater insight into that issue, see: Rory Fowler, "Has the Canadian Forces Completely Abandoned the Rule of Law?", (28 August 2020) online: Law Office of Rory G Fowler, Blog <>; and Rory Fowler, "2023 & 2024 – The Year that Was & the Year that Will Be" (2 January 2024) online: Law Office of Rory G Fowler, Blog <>. 

This matter depicts a resolution of charges under the Code of Service Discipline by virtue of a joint submission.  A joint submission is a negotiated resolution agreed to by both the prosecutor and the accused (through defence counsel).  It is not just a guilty plea, but a guilty plea with an agreed-upon sentence. 

For such submissions, the Supreme Court of Canada has provided guidance to sentencing judges in R v Anthony-Cook, 2016 SCC 43 in the form of the "public interest test": 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 would otherwise be contrary to the public interest. 

In R v Thoo, the military judge, Commander Deschênes indicated "... I do believe that a lengthier period of incarceration may have served [justice] better ...” and "... It must be made clear that the sailor who assaults his superior officer is attacking not merely the individual but the cornerstone of the military institution he or she represents, the chain of command. It is for this reason that the offence of violence to a superior officer is as … serious as the offence of treason.”

Notwithstanding these reservations, and her observations that Leading Seaman Thoo had not taken any steps to address his alcohol abuse (and, therefore, that his willingness to seek rehabilitation was in question), Commander Deschênes nevertheless accepted the joint submission, holding that it was not contrary to the public interest and would not bring the administration of justice into disrepute.

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