Courts Martial

Citation: R. v. Master Corporal J.R.J. McRae, 2007 CM 4006

Docket: 200631

STANDING COURT MARTIAL

CANADA

QUÉBEC

GATINEAU

______________________________________________________________________

Date: 7 February 2007

______________________________________________________________________

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

______________________________________________________________________

HER MAJESTY THE QUEEN

v.

MASTER CORPORAL J.R.J. MCRAE

(Offender)

______________________________________________________________________

SENTENCE

(Rendered orally)

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[1]                    Master Corporal McRae, having found you guilty of one charge of disobedience to a lawful command the court must now impose a fit and just sentence.  In determining the appropriate sentence, the court has considered the circumstances surrounding the commission of this offence, the mitigating circumstances presented by your defence counsel and the aggravating circumstances raised by the prosecutor, the representations made by the prosecutor and by your defence counsel, and the applicable principles of sentences.

[2]                    The agreed statement of facts on sentence you have provided to the court, the exhibits, as well as the testimony heard during the sentencing hearing and during the trial provide this court with the information to be used to determine the appropriate sentence in this case. 

[3]                    The general principles of sentencing which are common to both courts martial and civilian criminal trials in Canada, have been expressed in various ways.  Generally the are founded on the need to protect the public, and the pubic includes the Canadian Forces.  The primary principles are the principles of deterrence, which includes specific deterrence in the sense of the deterrent effect on you, personally as well as general deterrence; that is the deterrence for others who might be tempted to commit similar offences.  The principles also include the principles of denunciation of the conduct and last by 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 these factors.  The court is required, in imposing a sentence, to follow the direction set out in paragraph 112.48(2) of the Queen's Regulations and Orders for the Canadian Forces 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.

[5]                    The court has also considered the guidance set out in sections 718 to 718.2 of the Criminal Code.  I specify that these sections of the Criminal Code are used as guidance since they are not binding upon courts martial for the purposes of sentencing.  The purposes and principles enunciated in these sections serve 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 acknowledgment of the harm done victims and to the community.

[6]                    The court has also given consideration to the fact that sentences of offenders who commit similar offences in similar circumstances must not be disproportionately different.  The court must also impose a sentence that should be the minimum necessary sentence to maintain discipline.  The court must also remember that the ultimate aim of sentencing is the restoration of discipline in the offender and in military society.  Discipline is that quality that every CF member must have which allows him or her to put interests of Canada and the interests of the Canadian Forces before personal interests.  This is necessary because Canadian Forces members must willingly and promptly obey lawful orders that may have very devastating personal consequences such as injury or death.

[7]                    I describe discipline as a quality because ultimately although it is something which is developed and encouraged by the Canadian Forces through instruction, training and practice, it is an internal quality and it is one of the fundamental prerequisites to operational efficiency of any armed force.

[8]                    The prosecution suggests that the principles of general and specific deterrence and the maintenance of discipline are the prime factors that apply in this case.  The prosecution has provided this court with four cases in support of its submission, of a sentence of a reprimand and a fine in the amount of $1,200.

[9]                    Your defence counsel submits to the court that the sentence should emphasize the principle of rehabilitation when deciding upon the sentence, and when deciding upon the sentence and your counsel asserts that a fit sentence in this case is a fine of no more than $200.

[10]                  I will firstly deal with aggravating factors.  The prosecution submits that the offence is objectively and subjectively serious, and that this severity must be taken into account in deciding upon the sentence.  It is also advanced that the rank of the offender, master corporal, must be considered since the prosecution states that it is the first level of supervision and that to be a good leader one must be a good follower.  Finally, the prosecution points to a record of service and military matters that it suggests is not pristine.

[11]                  I will now deal with the mitigating factors.  Your counsel quite rightly submits that you are entitled to plead not guilty and be considered innocent until proven guilty.  This plea of not guilty should not be considered an aggravating factor nor is your choice of trial by court martial to be considered an aggravating factor.  Your counsel has also mentioned that the court should consider the delay in bringing this matter to trial and the effect it has had on you and your wife.  As mentioned by both the prosecutor and your defence counsel, you are a first-time offender and do not possess a conduct sheet.

[12]                  Although defence counsel has argued that the counseling session of 9 September amounted to the reprimand asked by the prosecutor the court disagrees with defence counsel's submission.  It is abundantly clear that any administrative measure, such as a recorded warning, counselling and probation, or other less severe administrative measures, such as a counseling session are not considered disciplinary measures. 

[13]                  Although it is correct to state that the offence of disobedience of a lawful command is, in itself, a serious offence because of the conduct it aims to punish and of the associated maximum punishment, one must, when determining a fit and just sentence, examine the exact nature of the specific offence.  As stated in previous courts martial, one can logically determine that such an offence, and its corresponding effect on discipline and on the Canadian Forces spans a wide range, although objectively serious it was felt at the time of the offence by Master Corporal McRae's supervisor that a simple and very succinct unit disciplinary investigation was sufficient to deal with the event that led to the charge.  The evidence heard during these proceedings clearly indicates this offence rests at the lower level of the range.

[14]                  A review of the exhibits provided by your defence counsel paint the picture of a service member who has strived to perform his work to the best of his abilities before and after the offence, and whose efforts have been recognized by your Canadian and American chains of command.  I also note that you were promoted to your present rank in 2003, approximately two years before the offence occurred, so you were a relatively junior master corporal at the time of the offence.

[15]                  The court does not agree with prosecution that general and specific deterrence must take centre stage in the determination of the sentence in this specific case.  The relatively minor offence of occurred in early September 2005, approximately 16 months ago.  You were repatriated to Canada in the summer of 2006.  The impact of this court martial on the detachment will be minimal.  The evidence presented to this court demonstrates that this infraction is more of an exception than a recurring theme in your career.  It is an isolated incident.  Therefore, the court does not think that specific deterrence is required in this case.

[16]                  The lengthy period from 23 September 2005 to the date of this trial, must be considered when determining the sentence.  By taking such a long time to bring this matter to trial, the inherent impact of these proceedings on discipline have been diluted and conversely the negative impact of these proceedings on you and your personal situations has been increased.  The court considers that this sentence must focus primarily on rehabilitation and be the minimum necessary in the circumstances to maintain discipline.

[17]                  In determining the sentence this court has considered the cases presented by the prosecutor and by your defence counsel, as well as leading Canadian cases on the subject of sentencing.  Master Corporal McRae, please stand up.  Master Corporal McRae, I sentence you to a fine in the amount of $200.

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

Counsel:

Major J. Caron, Regional Military Prosecutions Eastern

Counsel for Her Majesty The Queen

Lieutenant-Commander J.C.P. Lévesque, Directorate of Defence Counsel Services

Counsel for Master Corporal J.R.J. McRae