Courts Martial

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Citation: R. v. Sergeant J.Y.V. Cayer, 2007 CM 1006

Docket: 200698

DISCIPLINARY COURT MARTIAL

5 AREA SUPPORT GROUP

SIGNAL SQUADRON

VALCARTIER GARRISON

COURCELETTE, QUEBEC

Date: 15 February 2007

PRESIDING: COLONEL M. DUTIL, C.M.J.

HER MAJESTY THE QUEEN

v.

SERGEANT J.Y.V. CAYER

(Offender)

SENTENCE

(Rendered orally)

OFFICIAL ENGLISH TRANSLATION

[1]                    Sergeant Cayer, the court having accepted and recorded your plea of guilty to the second charge under paragraph 187(b) of the National Defence Act, I now find you guilty of this charge. The first charge was withdrawn by the prosecution before the accused had pleaded guilty to the second charge. Since the accused did not plead not guilty to one or more other charges, it is my duty at this stage of the proceedings to determine the sentence that should be imposed against Sergeant Cayer. Counsel present made a joint submission to the court concerning the sentence that I should impose, and  recommended that the court impose a reprimand with a fine of $2,500. However, the obligation to determine an appropriate sentence rests with the court, which is entitled to reject counsel’s joint submission. However, it is settled law that the court may reject it only for compelling reasons. Therefore, the judge should accept the joint submission made by counsel unless it is held to be inappropriate or unreasonable, contrary to public order, or likely to bring the administration of justice into disrepute. This would be the case, for example, if it fell outside the range of sentences previously imposed for similar offences. In return, counsel are required to inform the judge of all the facts that support the joint submission.

[2]                    In R. v. Généreux, the Supreme Court of Canada held that “to 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 emphasized that in the particular

context of military discipline, breaches of discipline had to be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct. However, even if this holding were raised to the level of principle, the Supreme Court’s statement does not permit a military tribunal to impose a sentence consisting of one or more punishments that would go beyond what is required in the circumstances of a particular case. In other words, any sentence imposed, whether by a military or a civil tribunal, should always constitute the minimum necessary intervention.

[3]                    In determining the appropriate sentence in this case, I have taken into account the circumstances surrounding the commission of the offence as revealed in the statement of circumstances, which Sergeant Cayer has accepted as true. I also considered the documentary evidence tendered to the court and counsel’s submissions. I analysed the various factors in the light of sentencing objectives and principles. I also took into account any indirect consequence that the finding or of the sentence might have for the offender, including the fact that you are going to have a criminal record. It does not need saying that the objectives and the principles to which I refer will vary slightly from case to case and the importance assigned to them is always adjusted or adapted to the circumstances of a case.  I think it is acknowledged that, in order to contribute to one of the key objectives of military discipline, the sentencing objectives and principles are the following:

firstly, the protection of the public, and the public in this case includes the Canadian Forces;

secondly, the punishment and denunciation of the offender;

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

fourthly, the separation of the offender from society, including members of the Canadian Forces;

fifthly, the rehabilitation and reform of the offender;

sixthly, the proportionality of the sentence to the seriousness of the offences and the degree of responsibility of the offender;

seventhly, consistency in sentencing;

eighthly, 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 circumstances in the circumstances relating to the offence and the personal situation of the offender.

In this case, the protection of the public will be achieved by a sentence that emphasizes not only general deterrence, but also the deterrence of the offender, despite the prosecution’s submissions on this subject. However, I shall return a little later to specific deterrence and why this court considers that the objective of specific deterrence will have been achieved in this case. It is also important to emphasize the punishment of the offender and denounce his act. To a lesser degree, it must be recognized, however, that the sentence must be proportional to the seriousness of the offence in the context of the case as a whole and the degree of responsibility of Sergeant Cayer, then a master corporal, in relation to the person who benefited from the impugned act, namely, former Sergeant Desmeules. The statement of circumstances shows that the accused, who was, as I said, a master corporal at the time of the events, prevailed on and authorized some of his subordinates to carry out renovations on the residence of his former superior and friend during work hours over a period of five consecutive days. Therefore, it is on the basis of these circumstances and all the factors to which I have referred that the joint submission of counsel must be assessed and permit the implementation of the sentencing objectives and principles.

Apart from the documents of an administrative nature filed by prosecuting counsel, the evidence heard – and, in fact, filed at the hearing with respect to sentencing – is simply limited to the joint statement of facts filed as Exhibit PP1-8.

[4]                    Therefore, in arriving at what the court considers an appropriate sentence, the court took into account the following aggravating and mitigating factors. I consider the following as aggravating:

The nature of the offence and the sentence provided for by Parliament. In the case of the second charge, this act was prejudicial to good order and discipline, which is punishable by dismissal with disgrace from Her Majesty’s service. As I remarked to Sergeant Cayer at the beginning of the explanation of the guilty plea, this is, objectively, a very serious offence.

Second, I consider as aggravating the fact that you abused your situation of authority by authorizing some of your subordinates to perform completely unlawful and unjustified tasks during working hours that had absolutely nothing to do with the accomplishment of military duties.

                                                                        Third, the fact that your abuse of authority was committed knowingly and deliberately in order to accommodate a former supervisor who, most importantly, was a friend.

And, fourth, I also consider as aggravating your age and your level of experience in the Canadian Forces.

It is inconceivable that a man of your military experience could so simply assume an authority that he did not possess over management of human resources of the Canadian Forces. In my opinion, this is a striking example of the indirect squandering of public funds.

[5]                    As for mitigating factors, I note in fact the following:

You admitted your guilt to the judge presiding over this matter this morning and you informed prosecuting counsel, through your counsel, of your intention to do so at the first reasonable opportunity. This is particularly important in the context of a disciplinary court martial. Not only was it unnecessary to call witnesses but the members of the court martial panel will not have to be deployed for an indefinite period, at the very least for the duration of these proceedings. Therefore, in this context, I find that your admission of guilt was sincere and testifies, I must say, to your remorse about those incidents.

Second, I consider as a mitigating factor the fact that this incident is or seems to be completely isolated and out of character. I think in fact that the circumstances indicate that you demonstrated a considerable lack of judgment under the circumstances. Just because a friend asks us for favours does not mean we must agree to do them. We must think about what is being asked and the consequences that may result. In this case, I must say, you completely missed the boat.

 I also consider as a mitigating factor the time that has passed since the commission of the offences. However, on this point, I understand that you have had medical problems that have not been completely  resolved and all this has caused you stress. But, you must understand, your stress is self-imposed and self-inflicted. It is because of your unlawful and illegal acts that this stress, in part at least, has affected you. Therefore, yes, in fact, the time since the commission of the offences plays a role. The fact that you experienced stress because of this also plays a role, but all this must be put in context.

I also consider your service record and your reputation as an excellent worker and the fact placed in evidence that the chain of command still places its full trust in you and, I think, wants to place its full trust in you. I think you still have a long road to go but it seems clear that they are prepared to give you a second chance. The joint submission made by counsel has also been reviewed in this context.

[6]                    I think that, for purposes of specific deterrence, the judicial process has done its job. It must be understood that Sergeant Cayer’s conduct was denounced before his peers and that he was subsequently convicted by court martial. Therefore, in view of the remarks of prosecuting counsel and the context in which they were uttered, I find that the indictment and conviction are effective measures of deterrence for the offender here today, because not only is he a person who was not a criminal or who had disciplinary problems but also because, as you know, Sergeant Cayer, this mistake is now going to cost you a great deal. You are aware that you have not only tarnished your military record and your reputation, but you will also have a conduct sheet and a criminal record. It must be understood that the abuse of authority in any form and the fraudulent use, and here I am using the word “fraudulent”, the fraudulent use of resources, both financial and human, is an act or conduct that is extremely prejudicial to good order and discipline because it is a direct betrayal of the trust placed in you by the state, its citizens and the military chain of command. Why? Because positions like the one you hold and held at the time are reserved ‒‒ or should be ‒‒ to those who are the most deserving and trustworthy. This is the context, then, in which there was this abuse of authority and squandering of financial and human resources, because to use military personnel paid from public funds for unlawful purposes, squanders monetary or financial resources as well as human resources.

[7]                    Therefore, I believe it is imperative in a situation like yours that the sentence reflect the seriousness of this breach of trust. In my opinion, a sentence in this case cannot be appropriate unless it includes a severe reprimand, not just a reprimand. The severe reprimand must be accompanied by a heavy fine.  This is why I have reviewed the joint submission of the parties with great attention. My review of the principles and the particular circumstances of this case is such that I am nevertheless prepared to accept the joint submission made by counsel, which I consider to be the lightest possible sentence in the circumstances that will ensure the protection of the public and the maintenance of discipline. Because, on the one hand, counsel has satisfied me that it appears to be adequate for the maintenance of discipline and, on the other hand, it does not bring the administration of military justice into disrepute, I will accept the joint submission, but I must tell you that I do so with great reluctance.

[8]                    Please stand up. I sentence you to a reprimand and a fine of $2,500. You may be seated.

[9]                    Concerning the terms and conditions for payment of the fine: the first instalment will be paid on March 15, 2007 and the second instalment on April 15, 2007. That is two equal payments of $1,250. Obviously, if you are released from the Canadian Forces before your fine is paid in full, the balance will be due immediately before the date of your release. Take Sergeant Cayer out.

                                                                                           COLONEL M. DUTIL, C.M.J.

Counsel:

Lieutenant-Commander M.D.M. Raymond, Regional Military Prosecutions Eastern

Counsel for Her Majesty the Queen

Major L. D'Urbano, Directorate of Defence Counsel Services

Counsel for Sergeant J.Y.V. Cayer