Courts Martial

 

COURT MARTIAL

 

Citation: R. v. Hansen, 2018 CM 4008

 

Date:  20180418

Docket:  201731

 

Standing Court Martial

 

5th Canadian Division Support Base Gagetown

Oromocto, New Brunswick, Canada

 

Between:

 

Her Majesty the Queen

 

- and -

 

Sergeant B.D. Hansen, Offender

 

 

Before: Commander J.B.M Pelletier, M.J.

 

REASONS FOR SENTENCE

 

Introduction

 

[1]               Sergeant Hansen, having accepted and recorded your plea of guilty in respect of the only charge on the charge sheet, the Court now finds you guilty of that charge under section 129 of the National Defence Act (NDA) for conduct to the prejudice of good order and discipline.

 

A joint submission is being proposed

 

[2]               I now need to impose the sentence. This is a case where a joint submission is made to the Court. Both prosecution and defence counsel recommended that I impose a sentence composed of the punishments of a reprimand and a fine in the amount of $1,000.

 

[3]               This recommendation of counsel severely limits my discretion in the determination of an appropriate sentence. I am not obliged to go along with whatever is being proposed. However, as any other trial judge, I may depart from a joint submission only if the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest. This is the test promulgated by the Supreme Court of Canada (SCC) in R. v. Anthony-Cook, 2016 SCC 43.

 

[4]               While it is my duty to assess the acceptability of the joint submission being made, the threshold to depart from it is undeniably 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 of a trial and providing an opportunity for offenders who are remorseful to begin making amends. The benefits of joint submissions are not limited to the accused but extend to victims, witnesses, the prosecution and the administration of justice generally; by saving time, resources and expenses which can be channeled into other matters. The most important gain to all participants is the certainty a joint submission brings, of course, to the accused, but also to the prosecution who wishes to obtain what a military prosecutor concludes is an appropriate resolution of the case in the public interest.

 

[5]               Yet, even if certainty of outcome is important for the parties, it is not the ultimate goal of the sentencing process. I must also keep in mind the disciplinary purpose of the Code of Service Discipline and military tribunals in performing the sentencing function attributed to me as military judge. As noted by the SCC in R. v. Généreux, [1992] 1 S.C.R. 259, the Code of Service Discipline is primarily concerned with maintaining discipline and integrity in the Canadian Armed Forces (CAF) but serves a public function as well by punishing specific conduct which threatens public order and welfare Courts martial allow the military to enforce internal discipline effectively and efficiently. 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. The sentencing usually takes place on a military establishment, in public, in the presence of members of the offender’s unit.

 

[6]               The imposition of a sentence at court martial proceedings, therefore, performs a disciplinary function. Article 112.48 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O) provides that a military judge shall impose a sentence commensurate with the gravity of the offence and the previous character of the offender. When a joint submission is made, the military judge imposing punishment should ensure, at a minimum, that the circumstances of the offence, the offender and the joint submission are not only considered, but also adequately laid out in the sentencing decision, to an extent that may not always be necessary in civilian criminal justice courts. The particular requirements of sentencing at courts martial do not detract from the guidance provided by the SCC on joint submissions, as laid out at paragraph 54 of Anthony-Cook.

 

Matters considered

 

[7]               The prosecutor read a Statement of Circumstances which was entered in evidence as Exhibit 6, along with other documents provided by the prosecution as required at QR&O article 112.51. The defence did not call any evidence.

 

[8]               In addition, the Court also benefitted from the submissions of counsel in support of their joint position on sentence on the basis of the facts and considerations relevant to this case, as well as by comparison with judicial precedents in similar cases. These submissions and the evidence allow me to be sufficiently informed to impose punishment adapted to the individual offender and the offence committed.

 

The offender

 

[9]               Sergeant Hansen is a 54-year-old infantryman. He has been posted here in Gagetown since 2011 and is serving with the Operations Service Branch, part of the 5th Canadian Division Support Group. He has joined the CAF in March 1983 for a first stint of 5 years in the infantry, then rejoined in June 1990. He has spent most of his career with the 2^nd Battalion, Royal Canadian Regiment (RCR) in Gagetown, deploying on three occasions to Bosnia, Haiti and Kabul, Afghanistan. The Court has not been provided with any information about Sergeant Hansen’s performance and potential as a member of the CAF, nor with any information about what impact the completion of these proceedings may have on his future career prospects with the military. I simply note that Sergeant Hansen’s current terms of service will expire upon him reaching 55 years of age in August of this year.

 

The offence

 

[10]           To assess the acceptability of the joint submission, the Court has considered the objective seriousness of the offence as illustrated by the maximum punishment that can be imposed. Offences under section 129 of the NDA for conduct to the prejudice of good order and discipline are punishable by dismissal with disgrace from Her Majesty’s service.

 

[11]           The facts surrounding the commission of the offence in this case are disclosed in the short Statement of Circumstances read by the prosecutor and formally admitted as accurate by Sergeant Hansen. These circumstances are that between 26 June and 22 September 2014, while on duty as shift supervisor at the Range Control Office at Canadian Forces Base Gagetown, Sergeant Hansen searched for and accessed images of pornography, nudity and sexual acts through a Defence Wide Area Network (DWAN) computer. This violated the orders and policies in place governing acceptable use of Information Technology (IT) systems, including Defence Administrative Order and Directive (DAOD) 6002-2. It is also admitted that this improper use of computer by Sergeant Hansen put the DWAN at risk and demonstrated poor leadership.

 

Objectives of sentencing to be emphasized in this case

 

[12]           The circumstances of the offence in this case may appear to some as being somewhat trivial, given that pornographic material may be easily accessed over the internet. Yet, the offence being sanctioned here is not so much about pornography as it is about security of Defence computers and IT systems, an important ongoing concern for both the Department of National Defence (DND) and the Government of Canada. The importance of this concern is not decreasing, quite the opposite. Personnel and leaders at all levels need to support IT security programs. In the circumstances, the focus in sentencing needs to be placed on the objectives of denunciation of the conduct of the offender and on general deterrence of others. At the same time, any sentence imposed should not jeopardize the rehabilitation of Sergeant Hansen.

 

Aggravating factors

 

[13]           As for aggravating factors, it is admitted that Sergeant Hansen was in a leadership position when he committed the offence. Also, I consider that the fact the offence was committed during working hours to be also aggravating, as recognized in the cases of R. v. Gagnon, 2010 CM 1016 and R. v. Hamelin, 2017 CM 4005. Indeed, there is an expectation that military personnel at work will not be distracted from official duties. Furthermore, access of pornographic material at work will often involve a risk that co-workers be exposed to the prohibited material, a situation highly inappropriate in any workplace and, in particular, a military workplace, as illustrated in the facts of the Gagnon case. As the offence can be committed by the use of a DND computer or IT system outside of work hours, I disagree with the suggestion that this aspect is necessarily included in the nature of the offence itself. In my view, it can be considered as aggravating.

 

Mitigating factors

 

[14]           The Court also considered the arguments of counsel as to the following mitigating factors arising either from the circumstances of the offence or the offender in this case:

 

(a)                First and foremost, Sergeant Hansen’s guilty plea, which I consider as a clear indication that the offender is taking responsibility for his actions, in this public trial in the presence of members of the military community.

 

(b)               Second, the fact that Sergeant Hansen has no criminal or disciplinary record.

 

(c)                Third, I have considered Sergeant Hansen’s significant period of satisfactory service with the CAF, including three overseas deployments, indicative in my view of his potential to continue making a positive contribution to Canadian society in the future, in a civilian or military capacity.

 

Assessing the joint submission

 

[15]           In determining the appropriate sentence, the Court must first assess the joint submission and determine if it is acceptable. The prosecutor and defence counsel both recommended that this Court impose the punishments of a reprimand and a fine in the amount of $1,000 to meet justice requirements. I may depart from the joint submission only if I consider that this proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest.

 

[16]           As a military judge, the issue for me to assess is not whether I like the sentence being jointly proposed or whether I would have come up with something better. Indeed, any opinion I might have on an appropriate sentence is not sufficient to reverse the joint submission that was made to me.

 

[17]           The high threshold imposed on trial judges to reverse joint submissions is necessary to allow all of their benefits to be obtained. Prosecution and defence counsel are well placed to arrive at a joint submission that reflects the interests of both the public and the accused. They are highly knowledgeable about the circumstances of the offender and the offence(s), as well as with the strengths and weaknesses of their respective positions. The prosecutor who proposes the sentence is in contact with the chain of command. He or she is 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. Defence counsel is required to act in the accused’s best interests, including ensuring that the accused’s plea is voluntary and informed. 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.

 

[18]           In determining whether a jointly proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest, I must ask myself whether, despite the public interest considerations that support imposing it, the joint submission is so markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a breakdown in the proper functioning of the military justice system. Indeed, as any judge assessing a joint submission, I have to avoid rendering a decision that causes an informed and reasonable public, including members of the CAF, to lose confidence in the institution of the courts.

 

[19]           I do believe that a reasonable person aware of the circumstances of this case would expect that the offender, guilty of conduct to the prejudice of good order and discipline, would receive a sentence composed of punishments that both express disapprobation for the failure in discipline involved and have a personal impact on the offender. A sentence composed of a reprimand and a fine is aligned with these expectations, as stated in precedents involving the improper use of Computers and IT systems by persons in leadership positions such as in the cases of Hamelin and R. v. Charest, 2007 CM 4010.

 

[20]           Considering all of these factors, as well as the circumstances of the offence and of the offender, the applicable sentencing principles and the aggravating and mitigating factors mentioned previously, I am unable to conclude that the sentence jointly proposed by counsel would bring the administration of justice into disrepute or would otherwise be contrary to the public interest. I must, therefore, accept it.

 

[21]           Sergeant Hansen, the circumstances of the charge you pleaded guilty to reveal a conduct that is contrary to clear orders and policies regarding the security of computers and IT systems, which you engaged in while in a leadership position as a shift supervisor. In failing in your duty to uphold good order and discipline, you have made a mistake which required sanction. I trust you realize that by now and that you are determined not to re-offend.

 

FOR THESE REASONS, THE COURT:

 

[22]           SENTENCES you to a reprimand and a fine in the amount of $1,000 payable forthwith.

 

Counsel:

 

The Director of Military Prosecutions as represented by Captain M.D. Ferron

 

Lieutenant-Commander B.G. Walden, Defence Counsel Services, Counsel for Sergeant B.D. Hansen