Courts Martial

Citation : R. v. ex-Private J.J.P.R Cimon,2005CM04

Docket: S200504

STANDING COURT MARTIAL

CANADA

QUEBEC

AREA SUPPORT UNIT VALCARTIER

COURCELETTE, QUEBEC

Date : May 4, 2005

PRESIDING: LIEUTENANT-COLONEL M. DUTIL, M.J.

HER MAJESTY THE QUEEN

v.

EX-PRIVATE J.J.P.R. CIMON

(Accused)

SENTENCE

(Pronounced Orally)

OFFICIAL ENGLISH TRANSLATION

[1]                    Before passing the sentence, ex-Private Cimon, the Court having accepted and recorded your guilty pleas on counts one, four, six, seven and eight, the Court finds you guilty of those counts and orders that the hearing be suspended on counts two, three and five. Please be seated.

[2]                    As the former Chief Justice of Canada, the Right Honourable Chief Justice Lamer, pointed out in R. v. Généreux, (1992) 1 S.C.R. 259:

To maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct.

[3]                    That said, the sentence imposed by a court martial, like that of a civilian court sitting in criminal and penal matters, must be the minimum sentence required in light of the all of the circumstances of the matter and of the circumstances of the offender. In determining a fair and equitable sentence, the court must find the delicate balance between ensuring the safety of the public, while also maintaining discipline within the Canadian Forces.

[4]                    Counsel before the Court filed a joint submission regarding the sentence that this Court should impose. Counsel recommends imposing a 30-day sentence. The prosecution also recommends that the Court issue an order pursuant to section 147.1 of the National Defence Act prohibiting the offender from possessing the property referred to in that section, with the exception of a cross-bow, for a period of 12 months beginning on the day that the offender has finished serving his sentence. The defence does not object to the Court making such an order.

[5]                    As stated by counsel, it is well established that imposing an appropriate sentence is the obligation of the court, which has the right to reject counsel’s joint submission. A corollary of this rule is that the court cannot reject the joint recommendation submitted to it unless there are compelling reasons enabling it to disregard it. Therefore, the judge must accept the submission made by counsel unless it is deemed inadequate or unreasonable, contrary to public order or it would bring the administration of justice into disrepute. For example, if it fell outside the spectrum of sentences previously imposed for similar offences and were deemed unduly lenient, the Court could reject it. In return, counsel are bound to state to the judge all the facts in support of this joint submission.

[6]                    When it is a matter of imposing an appropriate sentence on an accused for the wrongs he has committed and for the offences of which he is guilty, certain objectives are targeted in light of the principles applicable to sentencing, even though they vary somewhat from one case to the other. Their importance must not only be adapted to the circumstances of the matter, but also to the offender. To contribute to one of the primary objectives of military discipline, i.e. maintaining professional and disciplined armed forces, operational and effective in a free and democratic society, these objectives and principles can be set out as follows:

first, protecting the public, and the public in this case includes the Canadian Forces;

second, punishing and denouncing the offender;

third, dissuading the offender, and everybody else, from committing the same offences;

fourth, isolating the wrongdoer, if need be, from society, including the members of the Canadian Forces;

fifth, rehabilitating and reforming the offender;

sixth, proportionality with the gravity of the offence and the degree of responsibility of the offender;

seventh, harmonizing sentences;

eighth, using a term of imprisonment only when the Court is satisfied that it is punishment of last resort;

finally, the Court will take into consideration the circumstances aggravating and mitigating the sentence in relation to the offender’s situation by taking into account all of the circumstances of the matter.

[7]                    In this case, the public’s protection will be achieved by a sentence which emphasizes: deterrence, both individually and collectively, punishing the offender as well as denouncing the act, proportionality with the gravity of the offence and the degree of responsibility of its author. The sentence which this Court will impose should not however hinder the rehabilitation of ex-Private Cimon. The joint submission by counsel must facilitate the achievement of these objectives and principles, otherwise the administration of justice could be brought into disrepute.

[8]                    In considering what sentence would be appropriate, the Court considered the following factors as aggravating:

First, the nature of the offences and the sentence provided by Parliament. Every person who is guilty of the offence of possessing explosive substances under subsection 82(1) of the Criminal Code  is liable to imprisonment for a term not exceeding five years. With respect to the possession of property obtained by crime in violation of section 354 of the Criminal Code, it is punishable under section 355 of the Criminal Code by imprisonment for a term not exceeding two years when the value of the subject‑matter does not exceed five thousand dollars. These offences are objectively serious although the offence of possession of an explosive substance is more so.

Secondly, the context of this case and the circumstances surrounding the commission of the offences for which you have admitted your guilt. That is the subjective gravity of the offence. The evidence indicates that you did not stop at possession of explosive substances, but that you had some pleasure in building small explosive devices for amusement. It is true that 200 grams of the C-4 type explosive substance was only worth 10 dollars, but this substance nonetheless contained a considerable amount of charge which could have cause significant damage to people and to property. With respect to the mini mag-light, it was in working order and functional. You were perfectly aware that it was prohibited to possess such substances or property. Moreover, you had to amuse yourself by handling them and tampering with them, with all the dangers that involved for you, as well as for others.

Thirdly, the fact that you betrayed the trust of the Canadian Forces and of the entire Canadian population, which made certain dangerous substances available to you for legitimate purposes. You were young, inexperienced and fascinated by explosives, even before you joined the Canadian Forces. This did not however excuse you of your basic obligations and responsibilities as a military professional, including those relating to the responsible use and management of dangerous material that was entrusted to you in exercising your functions or that you may have had access to.

[9]                    In terms of mitigating factors, the Court recognizes the fact that you acknowledged your guilt on counts one, four, six, seven and eight. In this Court’s opinion, these admissions of guilt are sincere and candid. The prosecution attached great importance to your cooperation from the beginning of the investigation process and afterward. It also stated that in acknowledging your guilt, you spared the prosecution from proceeding with a long trial that would have required the presence of 11 witnesses. The Court also recognizes that you were young when you committed the offences and the fact that you have been discharged from the Canadian Forces since July 2004 for the events underlying the charges before this Court.

[10]                  Finally, the Court has taken into consideration your new family situation and the fact that you have a new full-time job. According to your own testimony, your employer would be willing to let you resume your employment if you are sentenced to serve a term of imprisonment. But for all of these factors, the term of imprisonment about to be imposed by the Court would have been much more substantial. The sentence imposed by this Court must not unfairly hamper your reintegration into the working world and into civilian society, or your rehabilitation. On the other hand, it must nevertheless send a clear message that your behaviour must be severely condemned.

[11]                  The defence pointed out that the acts with which ex-Private Cimon is charged were not related, directly or indirectly, to other criminal activities or to benefit or under the direction of a criminal organization and that it is not a matter either of offences perpetrated in the context of a terrorist act. However, there must be no doubt in anybody’s mind that the existence of one or several of these factors would be particularly aggravating circumstances in the context of unlawful possession by soldiers of explosive substances belonging to the Canadian Forces, regardless of the quantity. There is also no evidence before this Court that the unlawful possession of property obtained by crime, whether it be an explosive substance or not, is a blight or a problem within the Canadian Forces.

[12]                  After the case of ex-sapper Asselin, this is the second relatively similar matter to be decided by Standing Court Martial in the last year. I hope that the competent military authorities have taken the measures deemed necessary to ensure the effective control of explosive substances intended for military use and that they will  ensure that the counsel of the Canadian Military Prosecution Service are informed of the nature of the problem, if need be.

[13]                  For these reasons, the Court accepts the joint submission of counsel and sentences you to a term of imprisonment of 30 days. As well as this term of imprisonment, the Court issues an order pursuant to section 147.1 of the National Defence Act prohibiting you from having in your possession, for an 18-month period, firearms, prohibited weapons, restricted weapons, prohibited devices, ammunition, prohibited ammunition and explosive substances because it is desirable not only for your safety, but also for the safety of others.

[14]                  This sentence was imposed at 14:13 on May 4, 2005.

                                                                    LIEUTENANT-COLONEL M. DUTIL, M.J.

Counsel:

Major G. Roy, Regional Military Prosecutor, Eastern Region

Counsel for the Crown

J. Asselin, 400, Jean-Lesage Blvd., suite 310, Quebec City

Counsel for ex-Private Cimon