Courts Martial

Citation:R. v. ex-Private J.M. Vautier,2005CM3

Docket:S20053

STANDING COURT MARTIAL

CANADA

ONTARIO

CANADIAN FORCES BASE BORDEN

Date:1 February 2005

PRESIDING:COMMANDER P.J. LAMONT, M.J.

HER MAJESTY THE QUEEN

v.

EX-PRIVATE J.M. VAUTIER

(Accused)

SENTENCE

(Rendered orally)

[1]                    Mr. Vautier, having accepted and recorded your pleas of guilty to charges number one, two, three, and four, the court now finds you guilty of charges number one, two, three, and four in the charge sheet.

[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, Exhibit 3, the evidence heard in the course of the proceedings before me, and 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 offences and the blameworthiness or degree of responsibility and character of the offender.

[4]                    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.

[5]                    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.

[6]                    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 goals and objectives will inevitably predominate in arriving at 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 be a wise blending of these goals tailored to the particular circumstances of the case.

[7]                    As I explained to you when you tendered your pleas of guilty, section 139 of the National Defence Act prescribes the possible punishments that may be imposed at courts martial.  Those possible punishments are limited by the provision of the law which creates the offence and provides for a maximum punishment and are further limited to the jurisdiction that may be exercised by this court.

[8]                      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.  In arriving at the sentence in this case, I have considered the direct and indirect consequences of the findings of guilt and the sentence I am about to impose.

[9]                    The facts of the offences are contained in Exhibit 3, the Statement of Circumstances, before the court.  In summary form, so far as it relates to the charge of stealing in charge number one, the facts disclose that the offender stole a quantity of money from a bank machine by the use of a bank card, which, itself, was stolen by the offender from the offender's friend and roommate, a fellow soldier.  The loss of the card was apparently reported as soon as it was discovered, to the police authorities, but I have no information as to how the offender was discovered to have been the thief.

[10]                  The offender used the money to pay for some work on his car, apparently in cash.  The card itself was obtained from the wallet of the friend and roommate.  To obtain the cash, it was necessary for the offender to have the roommate's personal identification number, to be used with the card, and the offender came into possession of that information from his friend and roommate himself when, some days before the offence date, his roommate asked him to obtain some cigarettes for him, presumably, with the use of his bank card.

[11]                  With respect to the remaining three charges of absence without leave, the facts behind those offences are straightforward.  On three occasions in November of 2003, the offender was absent from his place of duty for periods of 26 hours and 10 minutes, 24 hours, and lastly a period of eight hours and 25 minutes. 

[12]                  I am told that since these offences were committed and as of February 2004, the offender was released from the Canadian Forces as being unsuitable for further service.

[13]                  The defence has asked the court, pursuant to section 194 of the National Defence Act, to take account of a further offence that is not specifically charged against the offender in the charge sheet.  Those facts involve what might have been charged as an offence contrary to section 118.1 of the National Defence Act; that is, failing to appear when summoned or ordered to do so before a service tribunal.

[14]                  The facts surrounding that incident were that on 11 January of this year, 2005, this court was properly convened for the court martial of the offender on the four charges to which he has pleaded guilty.  On that occasion, the offender himself, failed to appear.  Upon the application of the prosecution, I was satisfied that the offender had been properly served with the convening order in this case, requiring him to attend before this tribunal on 11 January 2005.  Further, the material that I received in the course of that application disclosed that the offender had been supplied with an electronic ticket for his air travel from Edmonton to Toronto, in order that he could appear before this court martial. 

[15]                  Having been satisfied that the offender had failed to appear before me as required, I acceded to the application of the prosecution and issued a warrant for the arrest of the offender.  I am told that the warrant for arrest was executed on 27 January 2005 and that the offender has been in military custody since that time.

[16]                  Section 194(1) of the National Defence Act provides under the heading "Similar Offences":

194.(1)  A court martial may, on the request of a person who is found guilty and who admits to having committed service offences similar in character to an offence of which the person is found guilty, take those service offences into consideration for the purposes of the sentence as if the person had been charged with, tried for and found guilty of those service offences.

[17]                  As I indicated, I am requested by the defence to apply that provision in this particular case, and take account of the failure of the accused to appear on 11 January 2005, in arriving at a fit sentence in this case. 

[18]                  The offender testified before me, in the course of these mitigation proceedings.  He testified that on the date he was to come to court from Leduc, Alberta, he overslept and panicked.  He then said in his evidence before me that he was scared.  This is the only evidence or information I have with respect to the reasons why the offender did not appear on 11 January 2005 as required.

[19]                  I do not accept the evidence of the offender that he overslept and panicked.  It seems much more likely to me that his failure to appear, earlier this month, was the result of simple cowardice.  I note from the material filed on the application that he was booked to fly on 10 January 2005 from Edmonton to Toronto.  The flight was scheduled to leave at 0910 hours.  It is a matter of common knowledge that the airport that services Edmonton is a long way from the city of Edmonton itself, but it is immediately adjacent to the town of Leduc, where the accused resides and resided at the material time.  More importantly, the accused made no effort to contact his counsel upon failing to board the plane as scheduled and required.  And this, despite what is said to be his wish to plead guilty to these charges, which I'm told was communicated to his counsel as soon as he was made aware of the charges, apparently some time in October of 2004.

[20]                  Those are the facts as I find them on the material and evidence made available to me with respect to the offence of failing to appear before a service tribunal.  It is argued by defence counsel, that by taking this offence into consideration, the court should consider it to be a mitigating factor.  I will deal in what follows with this submission on the part of the defence.

[21]                  In the course of their submissions to me, both the prosecution and the defence, have jointly recommended to the court a disposition of one day imprisonment to be suspended.  The sentence to be imposed by the court is, of course, ultimately a matter for the court to decide.  But, in the course of deciding a fit sentence, the court gives great weight to the joint recommendation of counsel.  After all, they represent the two different parties before this court.  The prosecutor is charged with the representation of the interests of the community, which includes, of course, the Canadian Forces.  Defence counsel, on behalf of the offender, owes a duty of loyalty to his client to advocate on his behalf, to the best of his ability.  Defence counsel along with the prosecutor, also owes a duty to the court.  It is sometimes difficult for a counsel to weigh these duties which sometimes appear inconsistent and perhaps even conflicting.  So, when the two counsel, having given proper consideration to all the relevant facts and representing their different constituencies, are able to come to a joint recommendation as to the sentence the court should impose, that joint recommendation, as I indicated, carries great weight with the court.

[22]                  The courts of appeal across Canada, including the Court Martial Appeal Court, have held that unless the jointly recommended sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest, the joint submission of counsel as to sentence should be accepted by the court. 

[23]                  I have given anxious consideration to the recommended sentence, but for the reasons that follow, I find that a sentence of one day imprisonment to be suspended is manifestly inadequate to address either the circumstances of these offences or of this offender.  I reject the joint submission of counsel.

[24]                  There are several aggravating factors that weigh with the court in determining sentence in this case.  With respect to the offence of stealing, as I indicated, the circumstances involve the theft from a friend and roommate, also a fellow soldier.  The circumstances under which many members of the Canadian Forces discharge their onerous duties, often involve a reduction in the ordinary privacy that other Canadians take for granted.  They must, by virtue of their duties, live, and work, and eat, and engage in recreation, in close proximity to their fellow soldiers.  In these circumstances, the offence of stealing, which is serious enough in civilian life can assume graver importance when committed in the context of a military environment.

[25]                  The facts of the stealing disclose that the accused must have engaged in some, perhaps, unsophisticated but, nonetheless, some planning in order to carry out his theft of money from his roommate.  In addition, there has been no restitution of the amount owed to the victim in this case, but for an amount of $60 to $70.  This is notwithstanding that the offence is admitted by the accused, indeed, he has instructed his counsel at an early stage to enter a plea of guilty and despite the fact that, on the evidence available to me, the offender appears to be of sufficient means to discharge this relatively minor financial obligation. 

[26]                  He appears to believe that by a reason of some wrong that has been caused to him by the victim in this case, that he is somehow relieved of his obligation to repay the money he stole, in full.

[27]                  There are aggravating circumstances that relate to the offences of absence without leave.  These were multiple offences committed over a relatively short period of time in November of 2003.  I have been given no reason, either in the submission of counsel or in the evidence before me, as to why the offender failed to present himself when required as charged in charges two, three, and four.  As will appear from the comments I will make in a minute, these offences of absence without leave appear to be the latest in a long series of similar offences for which the offender was dealt with summarily.  Indeed, in the course of his short career in the Canadian Forces since July of 2002, the offender accumulated 11 charges of absence without leave before the three charges that are referred to in the charge sheet before the court.

[28]                  His record, as disclosed by his Canadian Forces conduct sheet, is lengthy and related to the offences or some of the offences before the court.  They disclose charges of absence without leave for varying periods of time, from a matter of hours up to a period of four days, 16 hours and 20 minutes, for which he was awarded a sentence of 14 days detention on 25 October 2003, scant weeks before the offences before the court today.  On that occasion, I note that there was a second absence without leave charge referring to an absence of two days, one hour and 40 minutes occurring 15 September 2003.

[29]                  In addition to the absence without leave charges, the conduct sheet discloses an offence of assault contrary to section 266 of the Criminal Code, which appears to have been dealt with on 15 April 2003, at the same time as two of the absence without leave charges, which occurred 22 February 2003, a period at 49.5 hours and 14 March 2003, a period of 72 hours.  The disposition at that time, that is, April of 2003, was a $300 fine and two days detention.

[30]                  Other absence without leave charges on the offender's conduct sheet have attracted variously 19 days confined to barracks, imposed on 28 July 2003; that is, less than two weeks after the theft from Private Pinksen, seven days detention suspended, five days detention imposed for September 2003, before the disposition I've already mentioned of 25 October 2003, which attracted a disposition of 14 days detention.

[31]                  Lastly, the conduct sheet discloses an offence that was dealt with before the civil court of failing to comply with a demand for a sample of his breath required by a peace officer for analysis to be made by an approved roadside screening device for which he was fined $600 and prohibited driving for a period of one year, that sentence being imposed 2 October 2003.

[32]                  As appears from this description of the entries on the conduct sheet of the offender, over the course of what I have observed to be a short career in the Canadian Forces, the offender appears to have treated his obligations under military law as if it were little more than a drop in centre.  I should point out that the offender is not being punished today, again, for the earlier offences disclosed in his conduct sheet.  In the absence of any reason to suppose otherwise, I accept that the disposition imposed as disclosed by that sheet were appropriate in the circumstances.

[33]                  But the list of previous offences as disclosed by the conduct sheet can be an indication of the prospects for rehabilitation of the offender, and most assuredly those previous antecedents relate to the sentencing goal of specific deterrence.

[34]                  I note, finally, that the latest entries on the conduct sheet, date, from 2 October 2003, prior to the absence without leave charges that are before the court today; in other words, I have no information apart from the offence that I'm asked to take into account under section 194, no information as to any other involvement of the offender with the law.

[35]                  There are several mitigating factors, the court considers in this case.  The first is that the offender has pleaded guilty to the four charges before the court.  Indeed, he appears to have indicated to his counsel at an early stage, that is, very shortly upon becoming aware of the fact that the charges were proceeding to court martial, he communicated to his counsel his intentions to plead guilty to these offences.  Frequently, a guilty plea is taken by the court as a real indication of remorse on the part of the offender for the conduct that is charged.  That is not an invariable rule.  In some cases, a guilty plea may simply be an accommodation to the inevitable.  In other cases, a guilty plea may simply be an expression of the wish of the accused to dispose of the matters as quickly as possible.  The weight that the court attaches to a guilty plea as a mitigating factor varies from case to case. 

[36]                  Other mitigating factors include the personal circumstances of the offender, currently.  He is aged 25; that is, still relatively young.  He is single and residing in Leduc, Alberta.  He is employed with an oil drilling firm, after taking training since his release from the Canadian Forces, to equip him for that employment. 

[37]                  The next mitigating factor in this case, that the court considers, is the time spent in custody on these charges.  As I indicated, the offender has been in military custody since his arrest on 27 January 2005, a total of six days until today's date.

[38]                  How the court treats time spent in custody, awaiting sentence is a discretionary matter for the court.  I refer counsel to the case of R. v. Wust, from the  Supreme Court of Canada.  It has become conventional in Canadian civilian courts to credit an offender double the amount of time spent in pre-sentence custody when arriving or trying to arrive at a fit custodial sentence for the matters before the court.  That two for one credit is not a rule of law, but it is a rule of practice that recognizes that pre-sentence time in custody is served under circumstances which may be very different from the circumstances under which an incarceratory sentence of the court will be served.  For example, prior to sentence, an accused may well be in pre-sentence custody without the benefit of rehabilitation programs and other aspects that would be available to the offender were he serving a sentence of incarceration imposed by a court.  More importantly, time spent in pre-trial custody does not attract the earned remission that would otherwise reduce the time period a sentenced offender will actually serve in custody.  That principle, in my view, applies equally to those who are dealt with by way of sentences of incarceration under the Code of Service Discipline contained in the National Defence Act.  The Regulations for Service Prisons and Detention Barracks made pursuant to the National Defence Act, provide in article 5.08 for a scheme of remission, in order that a service prisoner or detainee may, by good behaviour in the institution, earn remission, that is, a reduction in the period of time he or she will actually serve in a custodial setting.

[39]                  For these reasons, I have accepted the submission that the time the offender has spent in custody on these charges should be credited to him in arriving at a fit sentence for the offences before the court.

[40]                  As I indicated previously in the list of mitigating factors that the court has under consideration, the defence has asked the court to take account of the offence of failing to appear on January 11, 2005, in connection with these charges.  It is argued that by agreeing to dispose of the matter under section 194, this is a mitigating factor which should reduce the sentence the court would otherwise impose.  I have some difficulty with this submission.  Section 194(1), which I've already read, enables the court to take account of service offences which are, "similar in character" to the offences before the court upon which sentence is to be pronounced.  I have some difficulty with the submission that the offence of failing to appear before a service tribunal when properly summoned is similar in character to the absence without leave offences that are charged in charges two, three, and four, before me.  But even assuming that the offence of failing to appear before a service tribunal is a similar offence as contemplated by section 194, I do not consider, in the circumstances of this case, that by taking that offence into account, the sentence to be imposed on the charges before the court should be reduced.

[41]                  I have been provided with the court martial case of Private Stuart, held in Gagetown in August of 2003.  Stuart was facing one drug charge.  On his court martial for the drug charge, he asked the court to take into account a series of four or five other drug related offences, which had not been charged against him, but for which he admitted his guilt.  The military judge stated in that case, beginning at page 52, line 39:

Now, turning to the mitigating factors.  I must tell you, Private Stuart, that this court finds very few mitigating factors in this case.  However, the court considered the fact that you've pleaded guilty to the offence that is before this court, and that you formally admitted to five other offences of trafficking under section 194 of the National Defence Act, and that is the most significant mitigating factor in your case.  This court considered these admissions of guilt as an acknowledgement of your misconduct and it is a factor that I certainly consider essential in the reformation and rehabilitation of any offender, but even more so in your case.  These admissions have saved, in the prosecution's perspective, these admissions have saved the Crown with significant expenses in bringing the charge before the court to trial, but also in bringing those other offences to trial for which you admitted to have committed.

[42]                  The scheme of taking other offences into account, that is, offences other than those before the court for sentencing is contained in section 194 of the National Defence Act, and is not replicated in civilian criminal law practice in Canada.  Nevertheless, I understand that, under the criminal law as administered in England there has been for some considerable time the ability of accused persons to ask the court to take into account other uncharged conduct in order to arrive at a fit sentence on the charges that are before the sentencing court.

[43]                  My understanding of this British process, which, as I indicated, is not available in Canadian civilian criminal law, is to allow an offender to, as it were, make a clean breast of everything that might be under investigation by the police authorities.  The advantage to the offender, of course, is that once offences have been taken into account under this scheme, the offender cannot, thereafter, be charged with those offences, and perhaps be found guilty and thereafter punished for those separate offences.

[44]                  Whether or not the model in the National Defence Act was based upon the British precedent, I am not able to say, but I am satisfied that the process of taking other uncharged offences into account does not, as a rule, mitigate the sentence that the court should impose in respect of the charged offences to which the offender pleads guilty.  Were the rule otherwise, I suggest, we would have the anomaly under which an offender could presumably commit more offences after being charged then ask the sentencing court to take those subsequent offences into account in order to reduce the offence for which he is to be sentenced.  Such a scheme, I suggest, would be manifestly irrational.

[45]                  Accordingly, I do not consider that by taking the offence of failing to appear before a service tribunal into account, that I should mitigate the sentence to be imposed in respect of the charged offences of stealing and absence without leave.  I do acknowledge, however, that by taking the offence of failing to appear into account, I should acknowledge the fact that the offender has clearly admitted his guilt for that offence and were I simply dealing with a fit sentence on an offence of failing to appear before a service tribunal, that admission by the accused would be a mitigating factor.

[46]                  The other mitigating factors I take into account in this particular case relate to delay.  In the first place, there was a delay in providing defence counsel for the offender.  When these charges were referred for court martial on 16 February, 2004, the commanding officer of the unit was required by the clear terms of QR&O article 109.04, to take certain steps to bring the existence of the referral to the attention of the offender and to determine the offender's wishes as to whether or not he desired legal counsel to be appointed by the Director of Defence Counsel Services to represent him, or intended to retain counsel at his own expense, or did not require legal counsel at that particular time.

[47]                  On the information before me, the unit has failed to comply with this clear regulatory obligation.  It was not until August of 2004, that a letter was sent to the offender.  I am told that, by that point, the offender was not receiving his mail and he did not become aware of the letter until October.  The time period between August and October, of course, is not the responsibility of the unit, but in my view, there is simply no excuse as to why the clear regulatory obligation was not complied with in this particular case.

[48]                  I have had occasion, in the past, to remark upon the failure of units to comply with this obligation.  In my view, it can be an exceedingly important one.  For reasons of ordinary fairness, a member should be informed of the fact that charges that have been reduced to a record of disciplinary proceedings will be going to court martial by referral up the chain of command.  More importantly, defence counsel have an important role to play in securing such evidence as they may be able to obtain that relates to the case that will be brought against their client.  Members of the Canadian Forces are entitled to proper representation at an early stage in the proceedings.  The only way that obligation can be discharged is if unit commanding officers take to heart the obligation contained in QR&O article 109.04.

[49]                  As to the degree of mitigation, that will depend on the individual case.  In this particular case, I do not consider that by reason of the lengthy delay in providing counsel to Mr. Vautier, he has suffered any serious prejudice to his defence.  Other cases may be different and the fact that they may be different reinforces the need for units to take seriously the obligation contained in article 109.04.

[50]                  The second matter of delay involves the time spent bringing this matter to trial, from the time it was referred up the chain of command from the unit on 16 February, 2004 until the matter was put in the hands of the Director of Military Prosecutions in June of 2004.  It is important, in my view, that serious charges that will proceed to court martial should receive the consideration that they deserve at all levels in the chain of command before the referral is made to the Director of Military Prosecutions.

[51]                  There is no room for ill-considered charges.  Nonetheless, the period of time that elapsed in this case, between February and June, suggests to me that the case was not dealt with with the expeditiousness that is required by the National Defence Act.  Again, in this case, the offender has not pointed to any specific circumstances that occasioned prejudice to him by reason of the delay in bringing the matter to trial.  Nonetheless, one may infer from the ordinary lapse of time of a period of months, that matters must have weighed heavily with the offender.  This, I consider to be a mitigating circumstance.

[52]                  I have already referred to the principles of sentencing that apply in all cases.  There are other principles of sentencing that may apply as well, depending on the circumstances of a particular case.  In this case, there are other principles the court bears in mind, as in this case, I am dealing with an offender with a lengthy record of previous similar offences.  One of these principles in the law of sentencing is referred to as the step principle.  Ordinarily, when one is dealing with an offence that is an example of repeated conduct, the sentence of the court will normally be more severe than the sentence that was imposed on earlier occasions for the same kind of offence.  This is for obvious reasons.  When one considers that the deterrence of the individual is an important goal of sentencing, it may be that the imposition of increasingly severe punishments is necessary to bring home the lesson to an individual offender.

[53]                  There aren't many tools available to the court to encourage that, but one of them is to increase sentences for similar conduct that occurs repeatedly over time.  That is not all that the step principle has to tell us because it is important to remember that in increasing the sentence for this reason over similar sentences imposed for previous similar cases, the court is taking a step and not a giant leap.  In this case, the offender has many previous offences of absence without leave and the step principle appears to have been applied by the trying officers over time, such that the latest and most recent offence of absence without leave attracted, as I indicated, a period of detention of 14 days.

[54]                  The second principle that the court bears in mind, is that this is not simply a question of totalling up what would be fit sentences for each of the offences, before the court and then imposing that total.  The court must have regard for the sentence imposed, that is, the single sentence imposed as being a global response to all the charges before the court.

[55]                  I am asked to consider suspending an incarceratory sentence, in this particular case.  Section 215 of the National Defence Act reads:

215.  Where an offender has been sentenced to imprisonment or detention, the carrying into effect of the punishment may be suspended by the service tribunal that imposed the punishment.

[56]                  There is no statutory guide in the National Defence Act to assist the court in the application of this particular provision.  Nor do we have any developed jurisprudence in previous cases as to when it would be appropriate for the court to suspend the carrying into effect of a punishment of imprisonment or detention.

[57]                  I conclude that each case must be decided on its own particular facts and circumstances.  In this particular case, the facts and circumstances disclose that the offender has successfully integrated himself into civilian life.  He has secured employment, relatively well-paying employment, after following a program of training that he took himself following his release from the Canadian Forces.  He has set up a household in Leduc, Alberta.  If he has difficulties with substance abuse, I am satisfied that the circumstances of his present employment are likely to assist him in dealing properly with those difficulties.

[58]                  As I have indicated, the obligation of the court is to weigh all these factors in arriving at a fit sentence.  As I have already indicated, I have rejected the joint submission of counsel for a sentence of one day imprisonment suspended.  In all the circumstances of these offences and of the offender, I consider that a period of 30 days imprisonment is the minimum response required of the court.  As I previously indicated, I take into account the pre-sentence custody of six days which the offender has already served and I do so at a rate of two days credit for each day spent in custody.  I therefore credit the offender with a total of 12 days in pre-trial custody.

[59]                  Stand up, Mr. Vautier.  You are sentenced to 18 days imprisonment.  Pursuant to section 215 of the National Defence Act, the carrying into effect of this punishment is suspended.

[60]                  The proceedings of this court martial in respect of Ex-Private Vautier are hereby terminated.

                                                                                 COMMANDER P.J. LAMONT, M.J.

Counsel:

Captain S.M.A. Raleigh, Director Military Prosecution

Counsel for Her Majesty the Queen

Major A. Appolloni, Directorate of Defence Counsel Services

Counsel for ex-Private J.M. Vautier