Courts Martial

COURT MARTIAL

 

Citation:  R. v. Plourde, 2010 CM 2002

 

Date:  20100126

Docket:  200911

 

General Court Martial

 

Canadian Forces Base Gagetown

Oromocto, New Brunswick, Canada

 

Between: 

 

Her Majesty the Queen

 

- and -

 

Captain L.A. Plourde, Offender

 

 

Before:  Commander P.J. Lamont, M.J.

 

 

REASONS FOR SENTENCE

 

(Orally)

 

[1]               Having accepted and recorded your pleas of guilty to the two charges in the charge sheet; a charge of acts to the prejudice of good order and discipline and a charge of striking a superior officer, this court now finds you guilty of both charges.

 

[2]               Captain Plourde, 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 disclosed during the 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 an individual case.  A 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, which includes, of course, the Canadian Forces 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.

 

[5]               One or more of these goals and objectives will inevitably predominate in arriving at 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 be a wise blending of these goals tailored to the particular circumstances of the case.

 

[6]               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.

 

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

 

[8]               The facts of the offences are set out in some detail in Exhibit 7, the Statement of Circumstances.  In summary, it appears that the offender, over a course of many months, demonstrated his antipathy towards a number of his senior officers by communicating through email to other military members, in disparaging and likely defamatory terms.  It appears that his complaints of mistreatment at the hands of his superiors were groundless.  The offender held a position as a municipal councillor for the town of Oromocto.  On one occasion, in April of 2007, at an apparently public meeting of the Council, the offender made a series of vile and vituperative personal attacks upon the character and professional standing of two such senior officers, both of the rank of lieutenant-colonel, whom he described at one point as "sick and dangerous dishonest men."  Then, in June of 2008, when he was served with the paperwork related to the charge arising out of the April 2007 incident, the offender hit Major White on the side of the head in the presence of two other captains who had to restrain the offender to prevent further violence.

 

[9]               Counsel before me jointly recommend a sentence of a severe reprimand and a fine in the amount of $2500.  As counsel have pointed out, the sentence to be pronounced is, of course, a matter for the court, but where, as in this case, both parties agree on a recommended disposition, that recommendation carries considerable weight with the court.  The Courts of Appeal across Canada, including the Court Martial Appeal Court in the case of Private Chadwick Taylor, 2008, CMAC 1, have held that the joint submission of counsel as to sentence should be accepted by the court unless the recommended sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest.

 

[10]           I have considered the aggravating and mitigating circumstances identified by counsel in the course of their addresses.  In my view, it is a serious matter that the offender should have used a public platform to repeatedly and groundlessly denigrate his more senior officers.  I heard and I accept the expert opinion evidence of  Dr John Doucet, the psychiatrist, and Dr Cindy Letts a psychologist.  Both have recently been involved in the treatment of the offender for post traumatic stress disorder, major depressive disorder, and a possible bipolar disorder.  Both counsel have submitted that the mental illness of the offender is a mitigating circumstance in this case. 

 

[11]           The relevance of the mental illness of an offender in fashioning a fit sentence has been the subject of comment in several decided cases in Canadian civilian courts.  The authorities are collected and discussed by the Saskatchewan Court of Appeal in the case of R. v. Fraser, 2007 SKCA 113, decided 23 October, 2007.  In that case, Klebuc, Chief Justice of Saskatchewan, wrote at paragraph 35:

 

A review of these cases raises two instances where a sentence could be reduced on psychiatric grounds:

 

(1)  If the mental illness contributed to or caused the commission of the offence; or

 

(2)  If the effect of imprisonment or any other penalty would be disproportionately severe because of the offender's mental illness....

 

In the present case, both Dr Doucet and Dr Letts opined that "Captain Plourde's illness and the medication he was taking at the time were contributing factors to his behaviour which led to the military charges."  Both counsel before me appear to accept the accuracy of this conclusion and urge me to find that the mental health of the offender at the time of the offences is a mitigating factor in arriving at a fit sentence.  I confess to some difficulty in understanding precisely how the factors identified by the expert witnesses contributed to the course of abusive and harassing behaviour that the offender engaged in towards the senior officers.  I accept, of course, that the irritability, perhaps even hostility, displayed by the offender when the offences were committed might well be symptoms of the illness suffered by Captain Plourde, but to my mind, it is difficult to conclude on the evidence I have heard that any or all of the various symptoms described by the expert witnesses serve to explain much less justify or reduce the moral culpability of the behaviours that underlie the offences charged.

 

[12]           I do not wish to be understood to be downplaying or minimizing in any way the severity of the offender's mental illness.  There is no doubt that he has been seriously ill likely for many years.  I am simply remarking on the difficulty I have drawing the same conclusions as the expert witnesses on the basis of the evidence that I have heard.  I acknowledge though that both counsel support the conclusion that the expert witnesses have drawn. 

 

[13]           Considering all the circumstances, both of these offences and of the offender, I cannot say that the disposition proposed jointly by counsel would either bring the administration of justice into disrepute or is otherwise contrary to the public interest, and I therefore accept the joint submission.

 

[14]           Stand up please, Captain Plourde.  You are sentenced to a severe reprimand and a fine in the amount $2500.  The fine is to be paid out of the monies otherwise owed to you by way of severance payment upon your release from the Canadian Forces.

 

 

Counsel:

 

Major J.J. Samson, Canadian Military Prosecution Service

Counsel for Her Majesty the Queen

 

Mr David J. Bright, Barrister, Boyne Clarke Barristers and Solicitors, 33 Alderney Drive, Darmouth, Nova Scotia

Ms Amy Gibson, Barrister/Solicitors, Boyne Clark Barristers and Solicitors, 33 Alderney Drive, Darmouth, Nova Scotia

Counsel for Captain L.A. Plourde