Courts Martial

Citation: R. v. ex-Master Corporal H.N. Wells, 2005CM05

Docket: S200505

STANDING COURT MARTIAL

CANADA

QUEBEC

AREA SUPPORT UNIT SAINT-JEAN

Date : February 8, 2005

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

HER MAJESTY THE QUEEN

v.

EX-MASTER CORPORAL H.N. WELLS

(Accused)

SENTENCE

(Pronounced Orally)

OFFICIAL ENGLISH TRANSLATION

[1]                    Before passing sentence, the Court, having accepted and recorded your plea of guilty on the second count, now finds you guilty of the second count and orders that the hearing be suspended on the first count.

[2]                    Mister Wells, the retired Master Corporal Wells, admitted his guilt on a charge brought pursuant to section 129 of the National Defence Act for an act prejudicing good order or discipline, namely by using, when he held a standing advance, a part of that advance for personal expenses contrary to Canadian Forces Administrative Order 202-5.

[3]                    The Supreme Court of Canada recognized in R. v. Généreux that “[t]o maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently.” The Supreme Court pointed out that in the particular context of military discipline, disciplinary breaches must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct. These guidelines from the Supreme Court do not however enable a military tribunal to impose a sentence made up of one or several sanctions which go beyond what is required in the circumstances of the matter. In other words, any sentence imposed by a tribunal – civilian or military – must always be the minimum intervention required.

[4]                    Counsel before the Court filed a joint submission regarding the sentence that this Court should impose. Counsel recommend a sentence including a reprimand with a $500 fine. The defence is requesting a two- to four-month time period to pay the fine.

[5]                    The obligation to determine an appropriate sentence falls on the court, which has the right to reject counsel’s joint submission. It is well-established case law that the court can only reject it if there are compelling reasons to do so. Therefore, the judge must accept the joint submission made by counsel unless it is deemed inappropriate 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. In return, counsel are bound to state to the judge all the facts in support of this joint submission.

[6]                    For sentencing purposes, the Court took into account, inter alia, all of the circumstances surrounding the commission of the offence to which you pleaded guilty, as disclosed in the statement of circumstances, the truthfulness of which you have formally acknowledged. The Court also took into account all of the evidence filed during the portion of the hearing on sentencing and the arguments of counsel. The Court examined this evidence based on the principles applicable to sentencing and the mandatory requirements to maintain disciplined, operational and effective armed forces.

[7]                    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 applicable principles. These objectives and principles may vary somewhat from one case to the other, but the importance assigned to each must be adapted to the circumstances of the matter. 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 in the context of a matter like the one before this Court Martial :

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 anybody else, from committing the same offences;

fourth, rehabilitating and reforming the offender;

fifth, proportionality between the gravity of the offences and the degree of responsibility of the offender;

sixth, harmonizing sentences; and

finally, the Court will take into consideration the mitigating and aggravating circumstances incidental to the offender’s situation and incidental to the commission of the offences.

[8]                    In this case, the protection of the public will be achieved by a sentence emphasizing: the denunciation of the acts charged, individual as well as collective deterrence, and to a lesser degree, the rehabilitation of the offender. The joint submission by counsel must enable the Court to achieve these objectives.

[9]                    The Court considered the following aggravating and mitigating factors. I will begin with the factors aggravating the sentence. The Court considers the following factors as aggravating:

1. The nature of the offence and the sentence provided by Parliament. For an act prejudicing good order and discipline within the meaning of section 129 of the National Defence Act, we must impose dismissal with disgrace from Her Majesty's service or less punishment. In itself, this is an offence which is objectively serious, even if in actual fact the economic consequences of the act were not the most serious.

2. The fact that you hold a position of trust and that you were the person holding that standing advance. In the context of this matter, it is the most serious subjective aggravating factor.

3. The fact that you are an experienced soldier who lacked honesty and dignity. Considering your rank and your many years of service – almost 25 years – there is no doubt that you were aware of the policy governing accountable advances of public funds.

4. The fact that your actions amounted to a breach of trust in the broad sense of the term, toward your employer who entrusted you with the management and safekeeping of public funds.

As for mitigating factors, the Court notes the following:

1. The fact that you acknowledged your guilt and that in doing so, according to counsel for the prosecution, you avoided a long trial, where the evidence depended on circumstantial evidence and which would have required the presence of about ten witnesses.

2. The fact that your service records have been exemplary for almost 25 years and the absence of conduct sheets or criminal records.

3. The fact that for more than seven months the Canadian Forces held back some benefits that were owed to you based on your voluntary release, while you were under investigation. According to the information filed by your counsel, this amount is almost $17,000. When it was finally paid to you, the Canadian Forces recovered the sum of $551.86 that you had taken for your personal use, from the standing advance that had been entrusted to you. I must point out, however, that this mitigating factor only bears on the period that elapsed between the moment where you should have normally received your benefits and the actual payment.

4. The fact that it was an isolated incident resulting from a flagrant lack of judgment on your part.

5. The period of time that has elapsed since the offence was committed.

[10]                  The Court also notes, as a neutral factor, the fact that the sums that you obtained illegally were recovered and that the Canadian Forces did not incur any losses or expenses other than those resulting from the police investigation process initiated after your actions and the disciplinary and legal proceedings which account for our presence here in this courtroom.

[11]                  In imposing its sentence today, the Court has carefully considered the evidence before the Court, including the statement of the circumstances read by counsel for the prosecution. The Court also considered counsel’s arguments. As your counsel stated, this was a gross error in judgment which will have serious consequences for you. First, you have seriously tarnished your military record which to date only reported exemplary services. Second, you will be stigmatized for a good number of years to come because of this conviction because from now on you will have a criminal record.

[12]                  For these reasons, the Court with great reluctance accepts the joint submission by counsel, which it considers to be at the outermost limit of an appropriate sentence in order for it to be considered a minimum sentence to ensure the protection of the public and maintain discipline in the circumstances.

[13]                  Mr. Wells, please rise. This Court sentences you to a sentence including a $500 fine. The fine is payable in two equal installments. The first installment is due immediately and the second installment must be paid no later than March 8, 2005, by certified cheque or money order.

[14]                  Counsel for the prosecution, as soon as possible please inform counsel for the defence of the full address where the offender will be able to pay the fine imposed by the Court.

                                                                    LIEUTENANT-COLONEL M. DUTIL, M.J.

Counsel:

Major G. Roy, Regional Military Prosecutor, Eastern Region

Counsel for the Prosecution

Lieutenant-Colonel D. Couture, Directorate of Defence Counsel Services

Counsel for ex-Master Corporal H.N. Wells

Certified true translation

Kelley A. Harvey, BCL, LLB