Courts Martial

Citation: R. v. Master Corporal J.L.F. Crépeau, 2009 CM 4014

Docket: 200913

STANDING COURT MARTIAL

CANADA

QUEBEC

4 BATTALION, ROYAL 22E RÉGIMENT

Date: 17 June 2009

PRESIDING: LIEUTENANT-COLONEL J-G PERRON, M.J.

HER MAJESTY THE QUEEN

v.

MASTER CORPORAL J.L.F. CRÉPEAU

(Offender)

SENTENCE

(Rendered orally)

OFFICIAL ENGLISH TRANSLATION

[1]         Master Corporal Crépeau, having accepted and recorded an admission of guilt in respect of the first charge, I now find you guilty of this charge.  The prosecution and your defence counsel have submitted a joint sentencing submission and recommend imposing a reprimand and a $1,500 fine.  The final decision in sentence determination lies with the judge, who has the right to dismiss counsels’ joint submission.  However, I must accept the joint submission of counsel unless it is found to be inadequate or unreasonable, contrary to public order or would bring the administration of justice into disrepute.

[2]         As indicated in subsection (2) of section 112.48 of the Queen’s Regulations and Orders for the Canadian Forces, I also took into consideration any indirect consequence of the finding or of the sentence and the need to impose a sentence commensurate with the seriousness of the offence and the previous character of the offender.

[3]         It is recognized that, in order to contribute to one of the key objectives of military discipline, the sentencing objectives and principles are the following:

First, the protection of the public, which includes the Canadian forces;

Second, the punishment and denunciation of the offender;

Third, the deterrent effect of the punishment, not only on the offender but also upon others who might be tempted to commit such offences;

Fourth, the separation of the offender from society, including from members of the Canadian forces;

Fifth, the rehabilitation and reform of the offender;

Sixth, the proportionality and seriousness of the offences and the degree of responsibility of the offender;

Seventh, consistency in sentencing;

Eighth, the imposition of a custodial sentence, either detention or imprisonment, only once the court is satisfied that this is in fact the sentence of last resort applicable in the circumstances of the case; and

Finally, the court shall consider any relevant aggravating or mitigating factors in the circumstances relating to the offence and the personal situation of the offender.

[4]         To determine what constitutes the appropriate sentence in this case, I took into account the circumstances surrounding the commission of the offence as revealed in the statement of circumstances, which you have acknowledged to be true.  I also considered the evidence that was filed, the case law and the submissions by counsel. I analysed these various factors in light of the objectives and principles applicable in sentencing.

[5]         You were deployed in Afghanistan from June 2007 to March 2008. While you were deployed in Afghanistan, you had a relationship with Master Corporal Michaud, who was also deployed in Afghanistan. The relationship is described as having been [translation] “conflictual” in the joint statement of facts found in Exhibit 14. In November and December 2007, this tense relationship led you to send e-mails to Master Corporal Michaud’s husband, Warrant Officer Caron, to his Canadian Forces e‑mail address. Warrant Officer Caron was assigned to the Canadian Forces Leadership and Recruit School in Saint-Jean-sur-Richelieu. You sent these e-mails, which contained details of their marriage, to poison a marital relationship that was already in trouble. On 17 January 2008, you sent an e-mail to Warrant Officer Caron which reads as follows: [translation] “I’m glad that you opened this e-mail because it gives me a chance to tell you how happy I am that your slut has come back, since it’ll make me feel a bit better, especially as the last time, I looked at the photo of (D.C.), and it excited me, and I hope that they’ll visit me. I’d love to have it off with your little girl when I get back”.

[6]         As a result, Warrant Officer Caron filed a complaint with the Military Police. All the e-mails came from the address deckerbroderbund@hotmail.com. The e-mails were in fact anonymous, since neither Warrant Officer Caron nor Master Corporal Michaud knew who the hotmail account belonged to. A military police investigation, with the technical support of the Sûreté du Québec and the Royal Canadian Mounted Police, found that the computers seized at your home were used by the e-mail address from which the e-mails to Warrant Officer Caron were sent and that the computer used to send the e-mail dated 17 January 2008, was a computer used for the well-being of Canadian soldiers in Afghanistan.

[7]         You pleaded guilty to the charge of having knowingly sent Warrant Officer Caron a threat to cause bodily harm to D.C. who is his and Master Corporal Michaud’s 12-year-old daughter. According to Exhibit 14, you were in conflict with Master Corporal Michaud, and you wanted to make Master Corporal Michaud’s and Warrant Officer Caron’s marital situation even more difficult. Exhibit 8, the defence’s admissions, indicates that, as a result of the 17 January 2008 e-mail, Master Corporal Michaud had trouble sleeping and was constantly worried about her daughter, that Warrant Officer Caron suffered from nervousness and hypervigilance and that their daughter, the target of the threat, also suffered from insecurity when she was informed of the contents of the e-mail. You admitted that you intended the threat to be taken seriously but that you had no intention of carrying it out. Moreover, the Court has received no explanation as to why you threatened to molest a 12-year-old girl. The Court has great difficulty understanding your perverse reasoning. You were going through a difficult time with Master Corporal Michaud and you threatened to molest her daughter in an anonymous threat sent to the father of this 12-year-old girl. What was going through your mind? What outcome were you imagining? The Court does not know, as the evidence filed by the prosecution and the defence does not explain this sad story.

[8]         Following your return from Afghanistan, you had marital problems that led to a separation. You pay alimony and have joint custody of your two children, a six-year-old girl and a four-year-old boy. You have seen a physician a few times since April 2009, and the physician described major depression, a risk of suicidal impulses and mood swings. You have seen a psychiatrist according to whom you suffer from mixed personality disorder (narcissism, borderline and dependent), which is aggravated by an accumulation of life stressors. The psychiatrist also recommended monthly follow-ups and that you take antidepressants in order to stabilize your mood. Since April 2009, you have also been seeing a psychologist once a week.

[9]         Having summarized the main facts of this case, I will now concentrate on sentencing. Therefore, in considering what sentence would be appropriate, I took into consideration the aggravating and mitigating factors that follow. I consider the following as aggravating factors:

The nature of the offence and the punishment provided for by Parliament. You are guilty of having made threats to cause bodily harm. The maximum penalty is five years’ imprisonment. As such, this is not an offence I would objectively describe as being of the most serious kind. I say this because the maximum penalty of five years is not among the most serious sentences provided for by the Criminal Code of Canada. A number of offences involving violence against a person, the use of firearms and crimes against property carry maximum sentences of life imprisonment, 10 years’ imprisonment or minimum sentences.

Having said that, subjectively, I find this offence very serious. While it is true that you did not threaten the victim directly and in person and that the threat was sent to the victim’s father, the fact remains that the very tenor of the threat was most heinous. You threatened to molest a 12-year-old girl. You were the father of a five-year-old girl and a three-year-old boy when you committed this offence. As mentioned by your defence counsel, while it is true that your e-mail did not contain any violent or sexual details with regard to sexual assault, this type of threat against a 12-year-old child is repugnant and leads the Court to ask several questions about your mental state and your ability to be a responsible parent. You had to know what effect the threat would have on the victim once she was informed of it and also on the parents of the victim; if you didn’t know, you must at least have hoped that the e-mail would have an adverse effect.

Second, under section 718.01 of the Criminal Code, when a court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. Moreover, subparagraph 718.2(a)(ii.1) clearly states that the fact that the victim was under the age of 18 is considered an aggravating circumstance. Although the victim does not seem to have suffered serious harm as a result of the threat, the fact remains that the offender threatened to molest a 12-year-old girl. This type of threat is condemned by our society because it targets victims who cannot easily defend themselves. The sentence must therefore take this into account.

Third, your act was premeditated. Your threat had a specific goal, even though it was not clearly explained to the Court. The threat was part of a series of e‑mails designed to create problems for Master Corporal Michaud and Warrant Officer Caron. You also sent the threat anonymously through a hotmail account. The very content of the e-mail indicated that you were able to recognize the victim, since you referred to a photograph.

[10]       As to the mitigating circumstances:

You have admitted your guilt. An admission of guilt is usually a sign of some remorse. Moreover, this plea allows the state to save large sums of money in addition to making it unnecessary to call many witnesses. As indicated by the prosecution, a technical expert and witnesses of the Sûreté du Québec and the RCMP would have been called to testify. Moreover, even though the Court considers this admission of guilt to be a demonstration of remorse from the accused, the Court gives it only some weight. Much more weight could have been accorded if the Court had been provided with evidence showing the offender’s sincere desire to apologize for his offence because he has realized the magnitude of his unlawful conduct as well as its significance.

A review of your Member Personnel Record Résumé, which can be found at Exhibit 5, reveals a 19-year career in the militia with the 4^th Battalion of the Royal 22e Régiment during which you completed many Class B assignments and three deployments, namely in Haiti, Kosovo and Afghanistan. Exhibits 7 and 9 to 13, personnel evaluation reports and a personnel development review indicate that you have always been considered a good worker. Lieutenant Boudrias, the unit adjutant, also testified about your performance, which he described as being very good. He stated that you are a member of the unit’s permanent personnel and that the loss of your services would be felt by the unit. He stated that the unit wishes to keep you on despite this disciplinary proceeding.

You have no conduct sheet and no criminal record. In his address, your counsel stated that the Court had to consider your personal circumstances as they are at present. He described your medical, personal and financial problems.

Master Corporal Crépeau, please rise.

[11]       The prosecution stated that you did not abuse your rank or status when you committed this offence, suggesting therefore that a punishment of reduction in rank is not necessary. He also described your personal situation and the unit’s needs and noted that such a sentence would negatively affect your rehabilitation and the unit. The prosecution also stated that a sentence of committal was not required and could hinder your rehabilitation and that such a sentence is not necessary as a specific deterrent.

[12]       The prosecutor and your counsel noted that the factor of rehabilitation was important in this case, and the prosecutor told the Court that specific deterrence was not a factor in your case. Your counsel also stated that there was little risk of your re-offending. Where is the evidence to support these arguments? It may be known to the counsel for the parties, but it was not submitted to the Court. Exhibit 14 describes very generally your psychological condition by giving some information on your current psychosocial problems and the recommended treatment.  However, the Court is completely unaware of any progress you may have made or whether there is a positive prognosis.

[13]       The prosecution is not asking the Court to make an order prohibiting the offender from possessing weapons under subsection 147.1(1) of the National Defence Act. Furthermore, he is not of the opinion that such an order is required as you did not use a weapon or threaten to use a weapon when you committed the offence. Your counsel also noted that there was no information on the violent character of the accused on record. As to subsection 196.14(3) of the National Defence Act, counsel for the prosecution and counsel for the defence also argued that such an order was not necessary in this case. In light of the evidence and the submissions, the Court has decided not to make such orders.

[14]       The very nature of the threat that you made requires a sentence that must send a clear message of denunciation and of general deterrence. Count yourself lucky that counsel made a joint submission, as I would otherwise have been of the opinion that this message would have been conveyed properly by a sentence of committal. The counsel of record, the prosecutor and your defence counsel, know the file much better than I do as I have only the evidence submitted before me. I have already commented on this evidence during the trial and in this decision. The Court has also considered the case law presented by the prosecution and the Canadian criminal case law on this matter. The Court is of the opinion that the military and civil case law does not contain similar cases to this one. The case law reveals a broad range of sentences and, on balance, is not of great help to this Court in determining a fair and appropriate sentence.

[15]       Master Corporal Crépeau, the Court is willing to give you the benefit of the doubt and to accept that the purpose of the threat you sent to Warrant Officer Caron was to cause much greater harm to the parents of the threat’s target than to the victim herself. However, please understand that this threat is most repugnant. The Court has great difficulty understanding your perverse reasoning, since the evidence in that respect is very slim.

[16]       Having closely examined the parties’ joint statement, I am of the opinion that, given the particular facts of this case, it properly incorporates the sentencing principles and that the choice of sentence is the lightest possible sentence to ensure the protection of the public and the maintenance of discipline in the circumstances. However, the Court disagrees with the amount of the suggested fine. In light of the circumstances surrounding the commission of this offence and your record, the Court finds that the following sentence is fair and appropriate. Master Corporal Crépeau, I sentence you to a reprimand and a fine in the amount of $4,000. The fine shall be paid by a first installment of $1,500, paid no later than July 1, 2009, and, then, in ten $250 installments paid on the first day of each following month.

                                     LIEUTENANT-COLONEL J-G PERRON, M.J.

Counsel:

Major J. Caron, Regional Military Prosecutions, Eastern

Counsel for Her Majesty the Queen

Major B. Tremblay, Director of Defence Counsel Services

Counsel for Master Corporal J.L.F. Crépeau