Courts Martial

Citation: R. v.  Ex-Ordinary Seaman C.A.E. Ellis, 2009 CM 4007

Docket: 200812                                                                                 

STANDING COURT MARTIAL

CANADIAN FORCES BASE ESQUIMALT

BRITISH COLUMBIA                               

CANADA                 

Date: 27 March 2009

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

EX-ORDINARY SEAMAN C.A.E. ELLIS

(Applicant)

v.

HER MAJESTY THE QUEEN

(Respondent)

DECISION RESPECTING AN APPLICATION THAT SECTION 139 OF THE NATIONAL DEFENCE ACT,  BREACHES SECTIONS 7, 11(D) AND 12 OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS.

(Rendered orally)

[1]      The applicant, ex-Ordinary Seaman Ellis, has been found guilty of having committed four offences.  More specifically, he is guilty of two charges of having trafficked in cocaine and of two charges of having used cocaine.  The applicant has made an application under subparagraph 112.05(5)(e) of the Queen's Regulations and Orders for the Canadian Forces.   The applicant alleges that section 139 of the National Defence Act, the scale of punishment, breaches sections 7, 11(d) and 12 of the Charter of Rights and Freedoms.  The applicant requests that, as the appropriate remedy for this alleged breach, the court order a conditional stay of proceedings pursuant to section 24(1) of the Charter of Rights and Freedoms until the National Defence Act is amended or until a civilian court has taken jurisdiction of this matter or that the court simply order a conditional stay of proceedings on the charges of trafficking in cocaine.

[2]      The applicant relies on the admissions made pursuant to Rule 37(b) of the MRE during the trial of these charges, an agreed statement of facts, as well as five exhibits.  The respondent has tendered three exhibits.

[3]      The applicant submits that imprisonment in a custodial facility as a last resort is a principle of fundamental justice.  The applicant submits that section 139 of the NDA breaches this principle of fundamental justice since it only allows for actual incarceration or a suspension of a sentence, but does not allow for the serving of a sentence of imprisonment in the community.  The applicant also alleges that section 130 breaches sections 11(d) and 12 of the Charter.  The applicant refers to the Court Martial Appeal Court decision in Trépanier^[1] and the Supreme Court of Canada decision in Morrisey^[2] in support of this  allegation.  Finally, the applicant asserts that these breaches may not be saved by section 1 of the Charter because no evidence has been provided by the respondent to demonstrate why such violations of Charter rights may be justified.

[4]      The respondent submits that section 11(d) does not apply in this case because of the wording of that section.  The respondent also submits that the court should only apply section 12 of the Charter and not section 7 in the present motion, and relies on the Supreme Court of Canada decision in Malmo-Levine to support this position.  He also argues that section 139 does not violate the principle against gross disproportionality and thus does not breach section 12 of the Charter.

[5]      The relevant provisions of the Charter of Rights and Freedoms that apply in this matter are sections 7, 11(d), 12, and 24(1).  Section 7 reads as follows:

 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Subsection 11(d) reads:

11. Any person charged with an offence has the right

                                                                                             ...

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

Section 12 reads:

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

Subsection 24(1) reads as follows:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[6]      Firstly, I will address the section  11(d) issue.  I fail to see how this provision of the Charter has any application in this motion.  The wording of this provision sets out that a person is presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.  Section 139 of the NDA pertains to the possible punishments that may be imposed in respect of service offences.  Section 139 has absolutely no application to the portion of a court martial or of a summary trial where the guilt of the accused is in question.  Section 139 only comes into play at the sentencing stage of the proceedings once an accused has been found guilty of one or more charges.

[7]      Specific rights pertaining to punishments are found at section 11(i) and at section  12 of the Charter.  Therefore, I find that this basis for this motion is without merit.

[8]      I will now turn my attention to the section 7 argument.  The Supreme Court of Canada has crafted a two-stage approach to any analysis under section 7.  First, is there a deprivation of life, liberty, and/or security of the person?   Second, if so, does the deprivation accord with principles of fundamental justice?  Any deprivation that does not accord with the principles of fundamental justice represents a violation of section 7.^[3]

[9]      Section 139 engages the liberty interest of an offender, since it contains punishments of imprisonment and of detention.  As stated in R. v. D.B. at paragraph 38:

Imprisonment and the threat of imprisonment constitute clear deprivations of liberty  (Reference re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at pp. 500‑501).

[10]    The court must now determine whether that deprivation is in accordance with the principles of fundamental justice.  Firstly, the court must determine what principle of fundamental justice is at issue here.  The applicant asserts that imprisonment in a custodial facility as a last resort is a principle of fundamental justice.  The court must now determine whether the principle of imprisonment in a custodial facility as a last resort is a principle of fundamental justice within the meaning of section  7 of the Charter.

[11]    The Supreme Court of Canada has provided a framework for this determination^[4] and it is composed of three criteria:

The first one:  It must be a legal principle;

The second one:  There must be a consensus that the rule or principle is fundamental to the way in which the legal system ought fairly to operate;

Thirdly, it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person.

[12]    The first question to be answered is whether imprisonment in a custodial facility as a last  resort is a legal principle.  In Second-Lieutenant D.  Baptista v.  R.^[5] the Court Martial Appeal Court stated at paragraphs 5 and 6:

We are all of the view that the military judge committed a serious error of principle in pronouncing sentence in that he failed to give effect to the well‑established rule that imprisonment should only be imposed as a last resort.

That rule is found in s. 718.2 of the Criminal Code but it is also a general rule of sentencing which was applied by the courts even before its enactment (R. v. Gladue, [1999] 1 S.CR. 688 at paras. 38 and 40).  

[13]    The Court Martial Appeal Court has commented on at least two occasions that many of the sentences imposed by civilian courts are not available to military judges.^[6]  The applicant has put much emphasis on the fact that section 139 does not contain a punishment that is similar to the punishment of a conditional sentence, as found at section  742.1 of the Criminal Code, R.S.C., 1985, c. C-46.

[14]    In March 1996, approximately six months before the amendments to Part XXIII of the Criminal Code were enacted, the Supreme Court of Canada rendered a decision in R. v. M.(C.A.)^[7], because that appeal raised, "a number of important legal issues in relation to general principles of criminal sentencing".  The court noted the significance of this appeal because as a matter of practice and policy the Supreme Court of Canada rarely hears appeals relating to the fitness of individual sentences.^[8]   That appeal mainly concerned itself with whether the Court of Appeal of British Columbia had erred in holding that there is a legal ceiling on fixed-term sentences.

[15]    At paragraph 36, the Supreme Court of Canada recognized that, "by far the most common and recognized form of criminal sanction under our justice system is imprisonment."  It then stated at paragraph 40 that:

... [A] well established tenet of our criminal law that the quantum of sentence imposed should be broadly commensurate with the gravity of the offence committed and the moral blameworthiness of the offender. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, 1985 CanLII 81 (S.C.C.), [1985] 2 S.C.R. 486, at p. 533:

It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a "fit" sentence proportionate to the seriousness of the offence.  Only if this is so can the public be satisfied that the offender "deserved" the punishment he received and feel a confidence in the fairness and rationality of the system.

[16]    This "principle of proportionality" has also been singled out by Cory J.  in speaking for the court in R.  v.  M.(J.J.)^[9], when he noted that:

It is true that for both adults and minors the sentence must be proportional to the offence committed.

[17]    Indeed, the principle of proportionality in a punishment is fundamentally connected to the general principle of criminal liability which holds that the criminal sanction may only be imposed on those actors who possess a morally culpable state of mind.  In discussing the constitutional requirement of fault for murder in R.  v.  Martineau^[10],  Cory J. noted the related principle that:

... punishment must be proportionate to the moral blameworthiness of the offender [and] those causing harm intentionally [should] be punished more severely than those causing harm unintentionally.

[18]    The Supreme Court of Canada at paragraph 41 of M.(C.A.) also found that:

... the principle of proportionality expresses itself as a constitutional obligation.  As this Court has recognized on numerous occasions, a legislative or judicial sentence that is grossly disproportionate, in the sense that it is so excessive as to outrage standards of decency, will violate the constitutional prohibition against cruel and unusual punishment under s. 12 of the Charter....  However, as I noted in Smith, at p. 1072, "[w]e should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation", and thus the review of the proportionality of sentences should normally be left to the "usual sentencing appeal process" directed at the fitness of sentence.   

[19]    The Supreme Court of Canada was of the opinion Parliament intended to vest trial judges with a wide ambit of authority to impose a sentence which is "just and appropriate" under the circumstances and which adequately advances the core sentencing objective of deterrence, denunciation, rehabilitation and protection of society.^[11] 

[20]    The court further stated that:

The bastion which protects Canadians from unduly harsh fixed‑term sentences is not found in the mechanics of the Corrections Act but rather in the good sense of our nation's trial judges.

And a bit later:^[12]

In our system of justice, the ultimate protection against excessive criminal punishment lies within a sentencing judge's overriding duty to fashion a "just and appropriate" punishment which is proportional to the overall culpability of the offender. 

[21]    The Supreme Court of Canada stipulated that when exercising his or her specialized discretion under the Code, a sentencing judge should generally refrain from imposing a fixed-term sentence which so greatly exceeds an offender's expected remaining life span that the traditional goals of sentencing, even general deterrence and denunciation, have all but depleted their functional value.  But with this consideration in mind, the governing principle remains the same:  Canadian courts enjoy a broad discretion in imposing numerical sentences for single or multiple offences, subject only to the broad statutory parameters of the Code and the fundamental principle of our Canadian criminal law that the global sentences be "just and appropriate."

[22]    In the final analysis, the Supreme Court found that:

... overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing to determine a "just and appropriate" sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender.

[23]    The Supreme Court of Canada then commented at paragraph 92 on the role of the appellate courts in the sentencing process.  It found that:

Appellate courts, of course, serve an important function in reviewing and minimizing the disparity of sentences imposed by sentencing judges for similar offenders and similar offences committed throughout Canada.... But in exercising this role, courts of appeal must still exercise a margin of deference before intervening in the specialized discretion that Parliament has explicitly vested in sentencing judges.  It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime....  Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.  As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.  For these reasons, consistent with the general standard of review we articulated in Shropshire, I believe that a court of appeal should only intervene to minimize the disparity of sentences where the sentence imposed by the trial judge is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes.

[24]    A new Canadian sentencing regimen, being Part XXIII of the Criminal Code, came into force on 3 September 1996.  As stated by the Supreme Court of Canada in R.  v.  Gladue^[13], these new provisions codify for the first time the fundamental purpose and principles of sentencing.  The court characterized this enactment as, "a watershed, marking the first codification and significant reform of sentencing principles in the history of Canadian criminal law."^[14]  (see paragraph 39 of Gladue).  The Gladue appeal was concerned with the new paragraph 718.2(e) that provides that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.  The issue in that specific appeal was the proper interpretation and application to be given to paragraph 718.2(e) of the Criminal Code.  The Supreme Court of Canada began by, stating that it would be articulating the rules and principles that should govern the practical application of paragraph 718.2(e) of the Criminal Code by a trial judge.  This was the first Supreme Court of Canada decision on this specific issue.  The Gladue decision is an examination of paragraph 718.2(e) with an emphasis on its application to aboriginal offenders, but certain broad principles and concepts of sentencing do flow from this decision.

[25]    At paragraph 33, the court clearly stated:

It should be said that the words of s. 718.2(e) do not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender.

Later at paragraph 36, the court stated that:

... s. 718.2(e) applies to all offenders, and states that imprisonment should be the penal sanction of last resort.  Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.

[26]    The court also mentioned that there was ample jurisprudence supporting the principle that prison should be used as a sanction of last resort, and that the 1996 sentencing amendments had changed the range of available penal sanctions in a considerable way.  It then stated:

The availability of the conditional sentence of imprisonment, in particular, alters the sentencing landscape in a manner which gives an entirely new meaning to the principle that imprisonment should be resorted to only where no other sentencing option is reasonable in the circumstances.  The creation of the conditional sentence suggests, on its face, a desire to lessen the use of incarceration.  The general principle expressed in s. 718.2(e) must be construed and applied in this light.

[27]    Prior to these 1996 amendments, Canadian sentencing jurisprudence had focused primarily upon achieving the aims of separation, specific and general deterrence, denunciation, and rehabilitation.  The court then noted that rehabilitation was a relative late‑comer to the sentencing analysis, which formerly favoured the interests of the state almost entirely.

[28]    The court noted that paragraphs (a) through (d) of section 718 were the restatement of the basic sentencing aims, while paragraphs  (e) and (f) were new, and, in combination with paragraph  (d), focused on the concept of restorative justice.  In the court's view, Parliament’s choice to include these new paragraphs (e) and (f), alongside the traditional sentencing goals must be understood as evidencing an intention to expand the parameters of the sentencing analysis for all offenders.

[29]    Having reviewed the legislative history of these new sentencing provisions, the court concluded that the purpose of paragraph 718.2(e) is to respond to the problem of overincarceration in Canada.

[30]    The court clearly stated the role of a sentencing judge in the following terms:

The role of the judge who sentences an aboriginal offender is, as for every offender, to determine a fit sentence taking into account all the circumstances of the offence, the offender, the victims, and the community.  Nothing in Part XXIII of the Criminal Code alters this fundamental duty as a general matter.  However, the effect of s. 718.2(e), viewed in the context of Part XXIII as a whole, is to alter the method of analysis which sentencing judges must use in determining a fit sentence for aboriginal offenders.

[31]    The court mentioned that in R.  v.  M.(C.A.). Lamer C.J. had restated the long‑standing principle of Canadian sentencing law that the appropriateness of a sentence will depend on the particular circumstances of the offence, the offender, and the community in which the offence took place, and that disparity of sentences for similar crimes is a natural consequence of this individualized focus.  The court in Gladue then quoted this portion from paragraph  92 of R.  v.  M.(C.A.):

It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime.... Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.  As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions of this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.

[32]    The Supreme Court of Canada, in Gladue,  then addressed the duty of the sentencing judge.  Upon examining the wording of paragraph 718.2(e), the court determined that the sentencing judge had a duty to consider all available sanctions, other than imprisonment, that are reasonable in the circumstances, and that the sentencing judge should pay particular attention to the circumstances of aboriginal offenders.  The Supreme Court of Canada acknowledged that the sentencing judge does have the discretion to determine the just and appropriate sentence.

[33]    Finally, the court stressed that:

... s. 718.2(e) must be considered in the context of that section read as a whole and in the context of s. 718, s. 718.1, and the overall scheme of Part XXIII.  [Section 718.2(e)] is one of the statutorily mandated considerations that a sentencing judge must take into account.

It then noted that it may not always mean a lower sentence for an aboriginal offender; it emphasized that the sentence imposed will depend upon all the factors which must be taken into account in each individual case, and that the weight to be given to these various factors would vary in each case.

[34]    In 2000, the Supreme Court of Canada, while restating its practice and policy of rarely hearing appeals relating to sentences, decided to hear five related cases, because they provided the Court the opportunity to set out for the first time the principles that govern the new and innovative conditional sentencing regime.  (My emphasis).  The judgement of the court in R.  v.  Proulx^[15],was delivered by the Right Honourable Chief Justice Lamer.  The court found that:

By passing the Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22 (“Bill C‑41”), Parliament has sent a clear message to all Canadian judges that too many people are being sent to prison.  In an attempt to remedy the problem of overincarceration, Parliament has introduced a new form of sentence, the conditional sentence of imprisonment.

[35]    While noting that prison has been characterized by some as a finishing school for criminals and as ill‑preparing them for reintegration into society, the court quoted this following portion of the Gladue decision:

Thus, it may be seen that although imprisonment is intended to serve the traditional sentencing goals of separation, deterrence, denunciation, and rehabilitation, there is widespread consensus that imprisonment has not been successful in achieving some of these goals. Overincarceration is a long‑standing problem that has been many times publicly acknowledged but never addressed in a systematic manner by Parliament. In recent years, compared to other countries, sentences of imprisonment in Canada have increased at an alarming rate. The 1996 sentencing reforms embodied in Part XXIII, and s. 718.2(e) in particular, must be understood as a reaction to the overuse of prison as a sanction, and must accordingly be given appropriate force as remedial provisions.

[36]    The court found that Parliament had mandated that expanded use be made of restorative principles in sentencing as a result of the general failure of incarceration  to rehabilitate offenders and reintegrate them into society.  By placing a new emphasis on restorative principles, Parliament expected both to reduce the rate of incarceration and improve the effectiveness of sentencing.

[37]    At paragraph 82 of Proulx, the Supreme Court of Canada emphasized that it had:

... held on a number of occasions that sentencing is an individualized process, in which the trial judge has considerable discretion in fashioning a fit sentence.  The rationale behind this approach stems from the principle of proportionality, the fundamental principle of sentencing, which provides that a sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender.  Proportionality requires an examination of the specific circumstances of both the offender and the offence so that the “punishment fits the crime”.  As a by‑product of such an individualized approach, there will be inevitable variation in sentences imposed for particular crimes.

The court then quoted the same portion of paragraph 92 of R.  v.  M.(C.A.), as it had previously done in Gladue.

[38]    The fundamental principle of sentencing is found at section 718.1 of the Criminal Code and reads as follows:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[39]    In Proulx, the Supreme Court rejected the use of presumptions against conditional sentences for certain offences, but also rejected presumptions in favour of them.  The Supreme Court of Canada re-emphasized that the particular circumstances of the offender and the offence must be considered in each case.

[40]    The Supreme Court of Canada was of the view that serious consideration should be given to the imposition of a conditional sentence in all cases where the first three statutory prerequisites are satisfied, because paragraphs 718.2(d) and 718.2(e) codify the important principle of restraint in sentencing and were specifically enacted, along with subsection 742.1, to help reduce the rate of incarceration in Canada.  But the court also stated that:

... neither seeks to do so at all costs.  Section 718.2(d) provides that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”.  Section 718.2(e) provides that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered”.

The court concluded that:

... a determination of when less restrictive sanctions are “appropriate” and alternatives to incarceration “reasonable” in the circumstances  requires a consideration of the other principles of sentencing set out in ss. 718 to 718.2.

[41]    The Supreme Court was conscious of the fact that:

Sentencing judges will frequently be confronted with situations in which some objectives militate in favour of a conditional sentence, whereas others favour incarceration.  In those cases, the trial judge will be called upon to weigh the various objectives in fashioning a fit sentence.  As La Forest J. stated in R. v. Lyons, 1987 ... 2 S.C.R. 309, at p. 329, “[i]n a rational system of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and the circumstances of the offender”.  [This court is fully aware that] There is no easy test or formula that the judge can apply in weighing these factors.  Much will depend on the good judgment and wisdom of sentencing judges, whom Parliament vested with considerable discretion in making these determinations pursuant to  s. 718.3.

[42]    The Supreme Court then pointed out the provisions of Part XXIII that demonstrate:

... that Parliament intended to confer a wide discretion upon the sentencing judge.  As a general rule, ss. 718.3(1) and 718.3(2) provide that the degree and kind of punishment to be imposed is left to the discretion of the sentencing judge.... the opening words of s. 718 specify that the sentencing judge must seek to achieve the fundamental purpose of sentencing “by imposing just sanctions that have one or more of the following objectives”.  In the context of the conditional sentence, s. 742.1 provides that the judge “may” impose a conditional sentence and enjoys a wide discretion in the drafting of the appropriate conditions ...

[43]    Now, how do these three Supreme Court of Canada decisions assist this court martial in determining whether imprisonment in a custodial facility as a last resort is a legal principle?  I find that they provide the reader with a clear message.  That message is:  In Canada, sentencing judges must consider every sentencing principle and every sentencing objective when crafting a sentence that will be proportionate to the gravity of the offence and the degree of responsibility of the offender.  "Fit and appropriate" or "just and appropriate" are the two expressions that consistently resonate throughout these decisions.  Also, the notion that the sentence must reflect the gravity of the offence committed and the moral blameworthiness of the offender is consistently entertained by these decision, as stated by the Supreme Court of Canada in R. v. Morrisey^[16]:

The fundamental principle of sentencing is proportionality:  Criminal Code, s. 718.1; R. v. Proulx, 2000 SCC 5 ... at para. 54.  It is the essence of a s. 12 analysis.  The other sentencing principles set down by Parliament in s. 718 and recognized by this Court in R. v. Gladue, ... [1999] 1 S.C.R. 688, at paras. 42‑43, and Proulx, supra, include separation, specific and general deterrence, retribution, rehabilitation, and restorative justice principles of reparations for harm and promoting a sense of responsibility in the offender for the harm done to the victims and the communities.

[44]    This principle of porportionality in punishment has not been declared as a principle of fundamental justice by the Supreme Court.  The extreme opposite of this principle, a grossly disproportionate sentence, could be considered a cruel and unusual punishment and thus been seen as a violation of section 12 of the Charter.

[45]    Throughout these decisions, the Supreme Court of Canada has recognized that Parliament has enacted provisions in the Criminal Code that provide sentencing judges ample discretion to determine "a just and appropriate" or a "fit and appropriate" sentence under the specific circumstances of each case that will advance the core sentencing objectives of denunciation, deterrence, rehabilitation and the protection of society.

[46]    Parliament modified the sentencing regime in 1996.  It did so to codify existing jurisprudence and to include new sentencing principles.  These new principles aimed to accomplish certain specific objectives.   One of these objectives was to reduce the number of prisoners and deal with the problem of overincarceration.  The Supreme Court did note in R.  v.  M.(C.A.)  that imprisonment was by far the most common and recognized form of criminal sanction under the Canadian justice system.

[47]    In Gladue, the court noted that the words of paragraph 718.2(e) do not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender.  This new Criminal Code provision provided that imprisonment should be used as a last resort if other available sanctions could not serve the needs of sentencing in a particular case.  Parliament provided civilian judges with the new sentence of a conditional sentence.  This sentence of imprisonment could be served in the community and Parliament attached numerous conditions to its use.

[48]    The availability of this sentence in a specific case is subject to the conditions found at section 742.1 and to the discretion of the sentencing judge, when he or she examines the specific facts of the offences and of the offender and then determines which sentence will represent a just and appropriate sentence that is proportional to the gravity of the offence, the moral blameworthiness of the offender, and  the community in which the offence took place. 

[49]    I do not agree with the applicant that the principle of imprisonment in a custodial facility as a last resort is a principle of fundamental justice within the meaning of section 7 of the Charter.  Section 718.2(e) does state that imprisonment as a last resort is a principle of sentencing.  In Proulx, the Supreme Court of Canada commented extensively on the "new and innovative conditional sentencing regime."  This new form of sentence was designed by Parliament to remedy the problem of overincarceration faced by civilian prisons.  In 1996, Parliament chose to provide civilian judges with a new sentencing tool and with new guidance, in part, to reduce the number of prisoners.  A conditional sentence is a sentence of imprisonment, although it is not served in a prison.  This type of sentence is subject to numerous legislative conditions.  The Criminal Code also contains numerous provisions that mandate a minimum sentence of imprisonment when a firearm is used in the commission of the offence.  These provisions have been upheld by the Supreme Court of Canada.  This also demonstrates that imprisonment is not always the last resort.

[50]    The Supreme Court of Canada has clearly stated that the use of conditional sentences, although strongly encouraged by the new provisions of the Criminal Code, is subject to the fundamental principle of sentencing, which is proportionality.

[51]    I do not find that custodial imprisonment as a last resort is a legal principle.  There is no language in Canadian jurisprudence that has elevated that sentencing principle beyond the threshold of fundamental justice.  As explained by Lamer J., as he was then, in Re B.C. Motor Vehicle Act, the principles of fundamental justice lie in "the basic tenets of our legal system. They do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system."  There is no evidence before this court martial and there is no jurisprudence before this court martial that indicates that custodial imprisonment as a last resort is a legal principle.  The Proulx and Gladue decisions indicate that Parliament was faced with a problem of overincarceration and it decided to codify the sentencing principles and included new principles and included a new sentence that would help remedy this problem of overincarceration.  As stated by the Supreme Court of Canada in Gladue, paragraph 718.2(e) is a remedial provision to the problem of overincarceration.

[52]    I will now turn my attention to the section 12 argument.  The test to determine this issue was recently reiterated in R.  v.  Ferguson^[17].  There the Supreme Court of Canada stated:

[14]  The test for whether a particular sentence constitutes cruel and unusual punishment is whether the sentence is grossly disproportionate:  R. v. Smith ... [1987] 1 S.C.R. 1045. As this Court has repeatedly held, to be considered grossly disproportionate, the sentence must be more than merely excessive. The sentence must be “so excessive as to outrage standards of decency” and disproportionate to the extent that Canadians “would find the punishment abhorrent or intolerable” ...

[53]    Although the applicant has provided the court with three exhibits that described the daily routine of detainees and prisoners at the Canadian Forces Service Prison and Detention Barracks, I fail to see how these exhibits assist the court in deciding that section  139 represents a cruel and unusual punishment.  Counsel for the applicant only once referred to one section, specifically 104.01 of Exhibit M1-3.  The Court Martial Appeal Court in Trépanier did comment on the harsh conditions of detention or of imprisonment in the Canadian Forces Service Prison and Detention Barracks at paragraphs 40 to 53.  Again, I fail see how this portion of the Court Martial Appeal Court decision is relevant to the motion before this court.  The Court Martial Appeal Court in Trépanier did not state that the conditions represented a cruel and unusual punishment.  While I can clearly understand from Exhibits M1-3, M1-4, and M1-5 that the daily life in the Canadian Forces Service Prison and Detention Barracks is not easy, is life in a civilian prison that much easier or better than in the Canadian Forces Service Prison and Detention Barracks?  I was not presented with any evidence to permit me to make any comparison.  I cannot conclude from the evidence presented by the applicant or by the case law and the address of counsel for the applicant that the conditions in the Canadian Forces Service Prison and Detention Barracks are grossly disproportionate and thus represent cruel and unusual punishment.

[54]    While it is evident that military judges do not presently have the same sentencing options that are available to civilian judges, it is also clear that the National Defence Act and the present scale of punishment do provide military judges with certain punishments and powers that permit military judges to determine a sentence that‒‒and to paraphrase to words of Lamer C.J. in R.  v.  M.(C.A.), as quoted in Gladue and Proulx‒‒the NDA and the present scale of punishment permit military judges to craft a sentence that is a just and appropriate mix of accepted sentencing goals that also depends on the needs and current conditions of and in the particular community where the crime occurred.  The scale of punishment offers military judges many alternatives to imprisonment and detention, and the National Defence Act permits the sentencing judge to suspend the sentence of imprisonment or of detention.

[55]    Would it preferable that military judges have at their disposal the same sentencing options as Canadian civilian judges?  This issue can be debated at length to determine how similar the military and civilian sentencing regimes should be.  But this issue remains within the realm of policy and does not fall within the ambit of fundamental justice.  It is up to Parliament to decide this issue, not this court martial.

[56]    For these reasons, the court denies the application made under subparagraph 112.05(5)(e) for a conditional stay of proceedings.  These proceedings under subparagraph 112.05(5)(e) are terminated. 

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

Counsel:

Major B. McMahon, Canadian Military Prosecution Service

Counsel for Her Majesty the Queen                                                    

Lieutenant‑Commander P. Lévesque, Directorate of Defence Counsel Services

Counsel for ex-Ordinary Seaman Ellis