Courts Martial

COURT MARTIAL

Citation:  R. v. Smith, 2010 CM 2018

Date:  20100728

Docket:  201036

Standing Court Martial

Birchall Training Centre

Canadian Forces Base Greenwood

Greenwood, Nova Scotia, Canada

Between: 

Her Majesty the Queen

- and -

Corporal M.K.P. Smith, Offender

Before:  Commander Lamont, M.J.

REASONS FOR SENTENCE

(Orally)

[1]        Corporal Smith, having and accepted and recorded your pleas of guilty to the four charges in the charge sheet; that is, three charges of an act or conduct to the prejudice of good order and discipline and one charge of absenting yourself without leave, this court now finds you guilty with respect to all four charges.

[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 6, 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 each 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, of which, of course, the Canadian Forces is a part, 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. 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.

[5]        As I told you when you tendered your pleas of guilty, section 139 of the National Defence Act 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.

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

[7]        The facts of these offences are not complicated.  Having been loaded on a course for medical treatment in Halifax, the offender was advised some weeks before the course was to commence by medical authorities that he was not a suitable candidate for the course.  The offender failed to communicate this information to his chain of command.  Instead of that, on the date the course was to commence, the offender was simply absent from his place of duty at Canadian Forces Base Greenwood. He remained absent for a total of nine days.  I am not provided with any information as to why the offender did not show up for work as required, and can only conclude that he simply wished to avoid his responsibilities for that period of time.

[8]        After the nine days had elapsed, the offender returned to his unit, and his supervisor, Master Corporal Harvey, was, I expect, concerned as to why the offender, so far as he was concerned, had returned from his medical treatment course in Halifax earlier than the allotted 30 days.  Instead of telling the Master Corporal the truth, the offender told him that he had simply withdrawn from the medical treatment course early.  Later, it appears that Master Corporal Harvey, in the course of a unit investigation, confronted the offender as to his reasons for apparently leaving the course early.  Again the offender lied to the Master Corporal as to the reasons and told him on this occasion that he had attempted to commit suicide.  In the course of an investigation by the military police, it appears the offender finally gave a truthful account, no doubt in answer to questions, as to his whereabouts during the time period referred to in these charges.

[9]        On these facts, both prosecution counsel and defence counsel submit that a fit disposition in this case is one of reduction in rank to the rank of private.  The sentence to be pronounced is, of course, a matter for the court, but where, as in this case, both counsel agree on a recommended disposition, that recommendation carries substantial weight with the sentencing court.  The courts of appeal across Canada, including the Court Martial Appeal Court, have held that the joint submission of counsel as to sentence should be accepted by the sentencing court unless the recommended sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest. 

[10]      I have no hesitation in adopting the joint recommendation of counsel in this case for the sentence they propose of reduction in rank to the rank of private.

[11]      Indeed, it appears to me that a sentence of reduction in rank is particularly apt and appropriate considering the circumstances of these offences and the circumstances of the offender.  By his repeated actions and failure to do his duty, in my view, the offender has demonstrated that he is not worthy of the rank of corporal in the Canadian Forces. He has enjoyed that rank since he was promoted to the rank of leading seaman in January of 2005. Rank, as I have said in other cases, is a visible indication of the trust and confidence that the Canadian Forces places in its members to discharge their duties with courage, honesty, and integrity. The loss of rank is a visible sign of that loss of confidence. But as rank can be lost, rank can also be regained once the offender has demonstrated that he is worthy of the trust reposed in him by the Canadian Forces of which his rank is a visible indication. On the information provided to me, it appears that this offender will shortly be released from the Canadian Forces and therefore you will not have that opportunity to regain the trust of your colleagues in the Canadian Forces.

[12]      Corporal Smith, you are sentenced to reduction in rank to the rank of private. 

Counsel:

Major P. Rawal, Regional Military Prosecutions (Atlantic)

Counsel for Her Majesty the Queen

Lieutenant(N) M. Létourneau, Directorate of Defence Counsel Services

Counsel for Corporal Smith