COURT MARTIAL

 

Citation: R v Bourassa, 2014 CM 3018

 

Date: 20140916

Docket: 201384

 

General Court Martial

 

Asticou Centre Courtroom

Gatineau, Québec, Canada

 

Between:

 

Her Majesty the Queen

 

- and -

 

Captain S. Bourassa, Offender

 

 

Before: Lieutenant-colonel L.-V. d'Auteuil, M.J.

 

[OFFICIAL ENGLISH TRANSLATION]

 

REASONS FOR SENTENCE

 

(Orally)

 

[1]               Captain Bourassa, the Court accepts and records your plea of guilty with respect to the third charge and in doing so, now finds you today guilty of this offence.

 

[2]               In the particular context of an armed force, the military justice system constitutes the ultimate means of enforcing discipline and it is, by this fact, an essential dimension of the military activity in the Canadian Forces. The purpose of this system is to prevent misconduct or in a more positive manner, to promote good conduct.

 

[3]               It is through discipline that the armed forces ensure that their members will perform their missions successfully, confidently and reliably. The military justice system also ensures that public order is maintained and that persons charged under the Code of Service Discipline are punished in the same way as any other person living in Canada.

 

[4]               In the present case, the prosecutor and the offender's counsel presented a recommendation with regard to the sentence to be imposed. They recommended that the Court impose a $750 fine in order to meet the requirements of justice. Although the Court is not bound by this joint recommendation, it is generally accepted that the sentencing judge should depart from the joint submission only when there are cogent reasons for doing so. These reasons may include the fact that the sentence is unfit, unreasonable, would bring the administration of justice into disrepute or be contrary to the public interest as mentioned in the Court Martial Appeal Court decision of R v Taylor, 2008 CMAC 1, at paragraph 21.

 

[5]               The fundamental objective of sentencing in a court martial is to ensure respect for the law and maintenance of discipline. The law does not allow a military court to impose a sentence that would be beyond what is required in the circumstances of the case. In other words, any punishment imposed by the Court must be adapted to the individual and constitute the minimum necessary intervention since moderation is the bedrock principle of the modern theory of sentencing in Canada.

 

[6]               In determining the punishment, the Court must respect certain objectives and principles. The objectives are as follows:

 

(a)                protect the public including the Canadian Forces;

 

(b)               denounce unlawful conduct;

 

(c)                deter the offender and other persons from committing the same offences;

 

(d)               separate offenders from society when necessary; and

 

(e)                rehabilitate and reform the offenders.

 

[7]               I must also take into consideration the following principles:

 

(a)                a punishment must be proportional to the gravity of the offence;

 

(b)               a punishment must be proportional to the degree of responsibility and previous character of the offender; and

 

(c)                the punishment should be similar to punishments imposed on similar offenders for similar offences committed in similar circumstances.

 

(d)               When applicable, the offender should not be deprived of liberty if a less restrictive punishment may be appropriate in the circumstances. In short, the Court should impose a punishment of imprisonment or detention only as a last resort as it was established by the Court Martial Appeal Court and the Supreme Court of Canada.

 

(e)                Lastly, any punishment should be adapted to account for any aggravating or mitigating circumstances relating to the offence or the offender.

 

[8]               Between January and March 2013, Captain Bourassa transmitted many e-mails regarding various personal administrative matters to his supervisors. These numerous emails, including to the Minister of National Defence, impacted his chain of command, which had to report to the authorities each time. Such an administrative burden had a direct impact on the unit's administration.

 

[9]               As a result, on 4 March 2013, Colonel McLean, Captain Bourassa's commanding officer, ordered him to cease this practice of sending e-mails regarding work-related issues outside the chain of command. Captain Bourassa understood Colonel McLean's order.

 

[10]           On 30 June 2013, Captain Bourassa sent an e-mail directly to Colonel Malo, Director General of the Canadian Forces Grievance Authority. The e-mail was also addressed to General Lawson, Chief of Defence Staff, and to Mr Peter Mackay, then Minister of National Defence. By sending such an e-mail, he was violating the order received.

 

[11]           Disobeying a command of a superior officer is a very serious offence. Obeying orders is fundamental in all aspects of military life. The efficiency of any military task and the success of any mission rely on this principle.

 

[12]           I find that the particular circumstances of the case before us require sentencing to focus on the objectives of denunciation and general deterrence.

 

[13]           As I mentioned above, the Court must take into consideration any aggravating or mitigating circumstances related to the commission of the offence. In the present case, there are three aggravating factors that draw my attention:

 

(a)                First, Captain Bourassa showed a lack of respect in the circumstances of the case. You were asked, Captain Bourassa, to stop your actions with respect to communications with people outside your chain of command, considering what had happened in the past. By sending an e-mail, knowing full well that you were not respecting this order, you showed a total lack of respect towards your superiors with regard to obeying this order.

 

(b)               The circumstances show that you thought first of yourself before thinking of others including other members of the Canadian Forces. Because of your age and particularly your experience, in terms of years, rank, positions held, you should have known that acting this way was inappropriate.

 

(c)                There was some form of premeditation. The context of the case shows that you knew what you were doing. There was some planning, because the e-mail must first be thought out, drafted before being sent. It is not a situation that results from a spontaneous act you performed without having time to think. Therefore, I note there is some form of premeditation.

 

[14]           Now the mitigating factors:

 

(a)                Your plea of guilty must be considered. What this tells me is that you are expressing remorse for what you did and you take full responsibility for your actions.

 

(b)               There are no entries on your conduct sheet for similar incidents or any other incident related to discipline.

 

(c)                The context in which you sent the e-mail in question. As you explained, there were personal issues and professional issues at the heart of your actions. You were emotional, in particular with regard to protecting yourself in the circumstances and you did not know where to turn so you decided to bypass order. I will retain this context as a mitigating factor.

 

(d)               In the context where general deterrence is an objective I consider in sentencing, the fact you are here today before the court martial, which is held in public, before some of your peers and superiors, is, in my opinion, a deterrent because it conveys the message not only to you that all disciplinary offences shall be judged accordingly but it also conveys the message to others that if such behaviour were to occur, it could have certain consequences.

 

[15]           Captain Bourassa, from your testimony, I note that you do not necessarily know what the future holds for you in the short term. You are awaiting a possible release but on the other hand, you have a few options professionally speaking. I understand that you are experiencing a restructuring of your personal life, both personally and financially and I hope you will be able to move on, at least from a military perspective, with respect to this incident. Keeping in mind that a breach of conduct, regardless of its scope, could lead to an accusation and bring you before a court martial. I also understand from your testimony that you did not necessarily think of the potential scope of all this considering what you did but this is what is happening. I ask you to move forward from this incident and do your best for things to settle into place, both personally and professionally.

 

[16]           I will therefore accept counsel's joint sentencing recommendation. In my opinion, considering all the factors I must consider and the circumstances of the case, usually, the Court could consider a fine to be reasonable. This could include a reprimand and a fine or severe reprimand and a fine, something of the sort, and in the circumstances, a $750 fine seems completely reasonable and I do not consider this to be against the public interest or that it would bring the administration of justice into disrepute.

 

FOR THESE REASONS, THE COURT:

 

[17]           FINDS Captain Bourassa guilty of the offence under the third charge, which is an offence under section 83 of the National Defence Act, namely, disobeying the command of a superior officer.

 

[18]           SENTENCES you to a fine in the amount of $750, payable in seven monthly payments of $100 and one last payment of $50, beginning 1 October 2014. If you are released from the Canadian Forces before you have paid this fine, the amount must be paid before your release.

 

Counsel:

 

The Director of Military Prosecutions, as represented by Major J.E. Carrier

 

Major J.L.P.L. Boutin, Directorate of Defence Counsel Services, counsel for Captain S. Bourassa