Courts Martial

Citation: R. v. Private C.R. Taylor, 2007cm4002

Docket: 200638

STANDING COURT MARTIAL

CANADA

ONTARIO

CANADIAN FORCES BASE BORDEN

Date: 17 January 2007

PRESIDING: Lieutenant-Colonel J.-G.  Perron, M.J.

HER MAJESTY THE QUEEN

v.

PRIVATE C.R. TAYLOR

(Offender)

SENTENCE

(Rendered orally)

[1]                    Private Taylor, please stand up.  Having accepted and recorded your plea of guilty to charges No. 2 and 3, I now find you guilty of these charges.  You may sit down.

[2]                    The statement of circumstances, to which you formally admitted the facts as conclusive evidence of your guilt, provides this court with the circumstances sur­rounding the commission of those offences.

[3]                    The principles of sentencing which are common to both courts martial and civilian criminal trials have been expressed in various ways.  Generally, they are founded on the need to protect the public, and the public in our case includes the Canadian Forces.  The primary principles are the principles of deterrence, that includes specific deterrence in the sense of the deterrent effect on you personally, as well as general deterrence; that is, deterrence for others who might be tempted to commit similar offences.  The principles also include the principle of denunciation of the conduct and last, but not least, the principle of reformation and rehabilitation of the offender.

[4]                    The court must determine if protection of the public would best be served by deterrence, rehabilitation, denunciation, or a combination of those factors.

[5]                    The court has also considered the guidance set out in sections 718 to 718.2 of the Criminal Code of Canada.  Those purposes are to denounce unlawful conduct, to deter the offender and other persons from committing offences, to separate the offender from society where necessary, to assist in rehabilitating offenders, to provide reparations for harm done to victims or to the community, and to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community.

[6]                    The court is also required, in imposing a sentence, to follow the direc­tions set out in article 112.48 of the Queen’s Regulations and Orders, which obliges it, in determining a sentence, to take into account any indirect consequences of the finding or of the sentence and impose a sentence commensurate with the gravity of the offence and the previous character of the offender.

[7]                    The court has also given consideration to the fact that sentences of offenders who commit similar offences in similar circumstances should not be dispro­portionately different.  The court must also impose a sentence that should be the minimum necessary sentence to maintain discipline.

[8]                    The Court Martial Appeal Court decision in R. v. L.P., [1998] C.M.A.J. No. 8, CMAC-418, stated clearly that a sentencing judge should not depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute, or unless the sentence is otherwise not in the public interest.  The prosecution and your defence counsel have jointly proposed a sentence of detention for a period of 40 days and a fine in the amount of $1000.  Your counsel has recommended that this fine be paid in two equal payments on each of the next two pay periods.

[9]                    The court must also remember that the ultimate aim of sentencing is the restoration of discipline in the offender and in military society.  The Supreme Court of Canada touched on the concept of discipline within the Armed Forces at paragraph 60 of its 1992 seminal decision of R. v. Généreux, [1992] 1 S.C.R. 259.  The court stated that, and I quote:

The purpose of a separate system of military tribunals is to allow the Armed Forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military.  The safety and well-being of Canadians depends considerably on the willingness and readiness of a force of men and women to defend against threats to the nation’s security.  To maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently.  Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct.  As a result, the military has its own Code of Service Discipline to allow it to meet its particular disciplinary needs.  In addition, special service tribunals, rather than the ordinary courts, have been given the jurisdiction to punish breaches of the Code of Service Discipline.  Recourse to the ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military.  There is thus a need for separate tribunals to enforce special disciplinary standards in the military....

The court then quoted the comments from a previous Federal court decision of MacKay v. Rippon, [1978] 1 F.C. 233, and I quote:

Without the code of service discipline the armed forces could not discharge the function for which they were created.  In all likelihood those who join the armed forces do so in time of war for motives of patriotism and in time of peace against the eventual­ity of war.  To function efficiently as a force there must be prompt obedience to all lawful orders of superiors, concern, support for and concerted action with their com­rades and a reverence for and a pride in the traditions of the service.  All members embark upon rigorous training to fit themselves physically and mentally for the fulfil­ment of the role they have chosen and paramount in that there must be a rigid adherence to discipline.

Many offences which are punishable under civil law take on a much more serious connotation as a service offence and as such warrant more severe punishment.  Examples of such are manifold such as theft from a comrade.  In the service that is more reprehensible since it detracts from the essential esprit de corps, mutual respect and trust in comrades and the exigencies of the barrack room life style [sic]. Again for a citizen to strike another a blow is assault punishable as such but for a soldier to strike a superior officer is much more serious detracting from discipline and in some circum­stances may amount to mutiny.  The converse, that is for an officer to strike a soldier is also a serious service offence.   In civilian life it is the right of a citizen to refuse to work but for a soldier to do so is mutiny, a most serious offence, in some instances punishable by death.  Similarly a citizen may leave his employment at any time and the only liability he may incur is for breach of contract but for a soldier to do so is the serious offence of absence without leave and if he does not to return the offence is desertion.

[10]                  Now, I will, first, deal with the evidence in mitigation of sentence.  Your plea of guilty, the small quantity of cocaine that was not in a pure form, the delay of bringing these charges to trial, the fact that you will soon be released from the Canadian Forces, there being no evidence that you made a profit from the transaction were brought to the court’s attention by the prosecutor.  Although you have a conduct sheet you must be considered a first-time offender since those offences occurred approxi­mately one year before the first inscription on your conduct sheet.

[11]                  Your defence counsel has provided the court with a joint submission of facts on sentencing, and letters from Ms Louise Beard, an addiction counsellor, the Bellwood Health Services, Master Corporal Williams, and Ms Brodt.  You appear to have experienced a very difficult childhood.  The death of your mother at aged 12 and your father’s subsequ­ent abuse of alcohol caused you to turn to drugs and you became addicted.  Although you voluntarily began attending counselling sessions in January 2005, it appears that you could not fully deal with your addiction and mental health problems at the time of the offences.  Ms Beard reports that you "excelled while in rehabilitation, and the prognosis was good for continued growth as he continues to strive to live a healthier adult lifestyle."

[12]                  The prosecution suggests the proposed sentence in this case is light, but the minimal necessary considering your personal circumstances.  Defence counsel does not consider this joint submission to be a "light sentence."  The prosecution and defence counsel both agree that selling drugs is a serious breech of the Code of Service Disci­pline.  Although you were not an original target of the CFNIS operation, you nonethe­less did sell cocaine to one of its undercover operators.  I see no redeeming value of not being an original target in this operation.  Both counsel agree that a sentence of incarcer­ation is adequate to achieve the objective of protecting society and the rehabilitation of the offender.

[13]                  The prosecutor recommends that this sentence must be serious enough to deter others from committing this type of offence, thus the principles of denunciation should be applied in the determination of the appropriate sentence.  Rehabilitation, in the sense of your rehabilitation for an eventual return as an active member of the Canadian Forces, is not to be considered an important factor since it has already been decided that you are to be administratively released from the Canadian Forces under item 5(f) for drug related reasons.  Those were the recommendations of the prosecution.

[14]                  The prosecution initially offered some cases to support the principle of parity and proportionality in the determination of your sentence.  These four cases dealt with charges of trafficking in different types of illegal drugs contrary to the Controlled Drugs and Substances Act for which the accused in all of these cases had been sen­tenced to imprisonment.  The prosecution has also offered two cases to demonstrate that sentences that did not include incarceration had also been considered and given by previous Standing Courts Martial.  I wish to point out at this time that in these two cases, the Tooth, Standing Court Martial of December 2000, and the Campbell Standing Court Marital of May 1998, that in these two cases the accused was found guilty of one count of possession of cocaine and not of the more serious charge of trafficking of cocaine.

[15]                  In this specific case, counsel, both counsel, have convinced me that you now understand your mistakes.  The court believes this sentence must focus primarily on general deterrence and denunciation.  Considering the mitigat­ing circumstances of this case, the administrative release that has already been decided, and keeping in mind the direction given by the Court Martial Appeal Court in R. v. L.P., I concur with the joint submission that an appropriate sentence in this matter is incarceration for a period of 40 days and a fine in the amount of $1,000.  I do not agree with the joint submission that this period of incarceration should be in the form of detention.  I will now explain why I disagree with this portion of the joint submission on sentence.

[16]                  The trafficking in illegal drugs is a serious breach of the Code of Service Discipline.  It is also a serious offence under the Controlled Drugs and Substances Act.  It is an indictable offence, and a guilty verdict renders one liable to impriso­nment for life whereas the offence of possession of an illegal drug is a hybrid offence whose maximum punishment is seven years imprisonment.  It is clear from this important distinction in sentencing scheme that Parliament views the trafficking of such sub­stances and drugs as a very serious offence, and wishes to punish offenders accordingly and deter individuals from committing such offences.

[17]                  The use of illegal drugs cannot be tolerated in the Canadian Forces, even worse, the trafficking in such drugs attacks the core values of our military society.  Earlier, I quoted a passage from the Supreme Court of Canada decision pertaining to discipline and the role of the Canadian Forces.  We perform a fundamental role in Canadian society.  We are allowed to use violence to defend our country and to accom­plish the tasks given to us by our democratically elected government.  With such power and duty also comes great responsibilities and obligations.  The men and women who are ordered to place themselves in dangerous situations in Canada and abroad must be of sound mind and sound body.  We are trained to perform our duties and are expected to execute those duties to the best of our abilities.  We must also trust our comrades-in-arms to be up to the task to ensure mission success and the security of our troops.  Chapter 20 of the Queen’s Regulations and Orders for the Canadian Forces provides us with the Canadian Forces drug control program. You do not have much experience within the Canadian Forces and will not have a chance to acquire any.  Anyone with any operational experience in the Canadian Forces realizes that the use of drugs and the trafficking of drugs are a direct threat to the operational efficiency of our forces and a threat to the security of our personnel and equipment.

[18]                  I assume that the prosecutor and your defence counsel have taken into account the numerous mitigating and aggravating factors as they have been presented to me in the formulation of their joint submission on sentence.  I do not take issue with the period of time of incarceration or with the amount of the fine.

[19]                  Neither the prosecutor nor your defence counsel has provided me with any evidence convincing me that the punishment of detention is warranted in this case.  In his submission the prosecutor alluded to the fact that the treatment afforded someone undergoing a sentence of detention was different from the treatment of a sentence of imprisonment.  When I asked what was this treatment, neither counsel has provided me with further evidence on this issue.  I assume from the evidence presen­ted in mitigation that both counsel are considering the medical needs of the accused during the period of incarceration.

[20]                  I have reviewed the relevant chapters in Volume I and Volume II as well as Appendix 1.4 of Volume IV of the Queen’s Regulations and Orders for the Canadian Forces.  Appendix 1.4 are the regulations for service prisons and detention barracks.  I have come to the conclusion that Private Taylor could be sentenced to imprisonment for 40 days, instead of detention for 40 days, and still receive the same medical treatment while an inmate of the Canadian Forces Service Prison and Detention Barracks.  I base this conclusion on the notes to Article 104.04 and 104.09, and my reading of Appendix 1.4.  Although Appendix 1.4, at article 4.05, Accommodation, stipulates at paragraph 3 that the service prisoner shall be segregated from, insofar as practical, the service detainees, I see no other distinction made between service detainees and service prisoners in all of the other aspects of life within the Canadian Forces Service Prison and Detention Barracks.

[21]                  The principles of parity of sentence are also very important in this case.  A sentence should provide equality and equity in the treatment of offenders.  I refer to the Court Martial Appeal Court decision of R. v. Lui, I spell L-u-i, [2005] C.M.A.J. No. 3, Docket CMAC-482.  The case law provided to me clearly indicates that a sentence of imprisonment is the norm for trafficking cases.  Although each case must be judged on its own merit, I have not been provided with any evidence that would make me stray from this norm. 

[22]                  Detention is used to rehabilitate the offender and prepare him or her for reintegration into the Canadian Forces.  The competent authorities have already decided that Private Taylor is not to remain as a member of the Canadian Forces.  The objective severity of the offence of trafficking as contained in the Controlled Drugs and Sub­stances Act, as well the strict Canadian Forces policy on the use of and the trafficking in illegal drugs, have directed service tribunals to impose sentences of imprison­ment in such cases, barring any exceptional mitigation.  Although the personal circumstances of Private Taylor are very unfortunate, I have not been provided with the type of mitiga­tion, both documentary and viva voce, that would make me impose the less severe punishment of detention in the case at hand.

[23]                  Having reviewed section 4 of the Criminal Records Act I conclude that a sentence of impriso­nment instead of detention will not have any effect on his applica­tion for a pardon in the future.

[24]                  The notion of different types of incarceration; that is to say, detention and imprisonment, is a purely military concept that has no equivalent in Canadian criminal law.  This distinction exists for the maintenance of discipline.  We must ensure that the type of punishment imposed on an offender fits the offence and the offender, but also the very nature of the punishment.  I have not been presented with any evidence, nor have I found, in the applicable regulations, any information that would make me conclude that a punishment of imprisonment would cause Private Taylor more hardship than the punishment of detention.  To the contrary, I was not presented with the necessary mitigation evidence that would cause me to accept the joint submission of the punishment of detention instead of the punishment of imprisonment in the case of trafficking in cocaine.  Having reviewed the Court Martial Appeal Court decision in R. v. L.P., I am in the opinion that, in the present case, the sentence proposed to this court by the prosecution and by the accused is not in the public interest.  This public interest being the interest of the Canad­ian Forces in strongly denouncing the trafficking of serious drugs such as cocaine.  Subsection 220(3) of the National Defence Act provides:

A service prisoner whose punishment of imprisonment for less than two years is to be put into execution shall as soon a practicable be committed to a civil prison to undergo punishment according to law, except that the committing authority may, in accordance with regulations made by the Governor in Council, order that a service prisoner be committed to a service prison or detention barrack to undergo the punish­ment or part thereof

Paragraph 2 of article 114.06 provides as follows:

Subject to paragraph (3), where the exigencies of the service make it desirable to do so, a committing authority may order that the service prisoner be committed to a service prison or detention barrack, there to undergo the punishment, or such part of the punishment as the committing authority may order.

[25]                  I consider it in the interest of the service, and the exigencies of the service, that you serve your 40 days of imprisonment within the confines of the Cana­dian Forces Service Prison and Detention Barrack so you may benefit from the medical treatment that the Canadian Forces have already initiated to help you along the path of recovery.

[26]                  Private Taylor, please stand up.  I sentence you to imprisonment for a period of 40 days and a fine in the amount of $1000.  The fine shall be paid in two equal payments on the next two pay periods.  In any event, it shall be paid in full the day before your effective date of release from the Canadian Forces.

                                                                                 Lieutenant-Colonel J.-G. Perron, M.J.

Counsel:                     

Major J.J.L.G. Caron, Directorate of Military Prosecutions

Counsel for Her Majesty The Queen

Lieutenant Commander M. Reesink, Directorate of Defence Counsel Services

Counsel for Private Taylor