Courts Martial

COURT MARTIAL

 

Citation:  R. v. McInnis, 2010 CM 2012

 

Date:  20100823

Docket:  201022

 

Standing Court Martial

 

Asticou Centre Courtroom

Gatineau, Québec, Canada

 

Between: 

 

Her Majesty the Queen

 

- and -

 

ex-Lieutenant(N) J.E.R. McInnis, Offender

 

 

Before:  Commander P.J. Lamont, M.J.

 

 

REASONS FOR SENTENCE

 

(Orally)

 

[1]               Lieutenant(N) McInnis, having accepted and recorded your pleas of guilty to the two charges in the charge sheet; that is, two offences of conduct to the prejudice of good order and discipline, being harassing behaviour contrary to DAOD 5012-0, this court now finds you guilty on charge number one and charge number two.

 

[2]        It now falls to me to determine and to pass a sentence upon you.  In so doing, I have considered the principles of sentencing that apply in the ordinary courts of criminal jurisdiction in Canada and at courts martial.  I have, as well, considered the facts of the case as described in the Statement of Circumstances and the other materials submitted during the course of this hearing; as well as the submissions of counsel, both for the prosecution and for the defence. 

 

[3]        The principles of sentencing guide the court in the exercise of its discretion in determining a fit and proper sentence in an individual case.  The sentence should be broadly commensurate with the gravity of the offence and the blameworthiness or degree of responsibility and character of the offender.  The court is guided by the sentences imposed by other courts in previous similar cases, not out of a slavish adherence to precedent, but because it appeals to our common sense of justice that like cases should be treated in similar ways.  Nevertheless, in imposing sentence the court takes account of the many factors that distinguish the particular case it is dealing with, both the aggravating circumstances that may call for a more severe punishment and the mitigating circumstances that may reduce a sentence.

 

[4]        The goals and objectives of sentencing have been expressed in different ways in many previous cases.  Generally, they relate to the protection of society, which includes, of course, the Canadian Forces, by fostering and maintaining a just, a peaceful, a safe, and a law-abiding community.  Importantly, in the context of the Canadian Forces, these objectives include the maintenance of discipline, that habit of obedience which is so necessary to the effectiveness of an armed force.

 

[5]        The goals and objectives also include deterrence of the individual so that the conduct of the offender is not repeated and general deterrence so that others will not be led to follow the example of the offender.  Other goals include the rehabilitation of the offender, the promotion of a sense of responsibility in the offender, and the denunciation of unlawful behaviour.  One or more of these objectives will inevitably predominate in crafting a fit and just sentence in an individual case, yet it should not be lost sight of that each of these goals calls for the attention of the sentencing court, and a fit and just sentence should reflect a wise blending of these goals tailored to the particular circumstances of the case.

 

[6]        I told you when you tendered your pleas of guilty about section 139 of the National Defence Act, which prescribes the possible punishments that may be imposed at court martial, those possible punishments are limited by the provision of the law which creates the offence and provides for a maximum punishment.  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.  It is an important principle that the court should impose the least severe punishment that will maintain discipline.

 

[7]        In arriving at the sentence in this case, I have considered the direct and indirect consequences for the offender, both of the findings of guilt and the sentence I am about to pronounce. 

 

[8]        The facts of the offence are not complicated and are set out with sufficient clarity in the Statement of Circumstances.  Suffice it to say that this is what might be described as an ordinary case of its kind, of a breach of the DAOD 5012-0 with the following important distinctions:

 

First of all, it was clear from the facts, with respect to both these offences and involving two different complainants, there was a sexual aspect to the harassing behaviour in which you engaged. 

 

Secondly, and of great concern to the court, is that this sexually harassing behaviour occurred in the course of your professional relationship as a physician with two different patients, also both members of the Canadian Forces. 

 

[9]        I conclude on these facts as alleged and admitted in the Statement of Circumstances that the pattern of behaviour with regard to each of the two complainants was harassing behaviour as that term is used in the DAOD instrument. 

 

[10]      On these facts, counsel before me, both for the prosecution and the defence, jointly recommend a sentence of a severe reprimand and a fine in the amount of $2,000.  As counsel on behalf of the offender has pointed out in the course of his address, the sentence to be pronounced is, of course, a matter for the court, but where, as in this case, both parties agree on a recommended disposition, that recommendation carries considerable weight with the court.  The Courts of Appeal across Canada, including the Court Martial Appeal Court in the case of Private Chadwick Taylor, 2008 CMAC 1, have held that the joint submission of counsel as to sentence should be accepted by the court unless the recommended sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest. 

 

[11]      On all the circumstances of this case relating both to the offender himself and to the facts of the offences, I cannot say that the disposition proposed jointly by counsel would either bring the administration of justice into disrepute or is otherwise contrary to the public interest, and I, therefore, accept the joint submission. 

 

[12]      Lieutenant(N) McInnis, you are sentenced to a severe reprimand and a fine in the amount of $2,000.  The fine is to be paid in equal monthly instalments of $400 each, commencing 1 October 2010 and continuing for the following four months. 

 

 

Counsel:

 

Captain R.D. Kerr, Canadian Military Prosecution Service

Counsel for Her Majesty the Queen

 

Mr C.A. Wayland, McCarthy Tétrault, Suite 5300, TD Bank Tower, Toronto Dominion Centre, 66 Wellington Street West, Toronto, Ontario

Counsel for ex-Lieutenant(N) J.E.R. McInnis