Courts Martial

Citation: R. v. Corporal J. Dubé, 2008 CM 3009

Docket: 2007-69

STANDING COURT MARTIAL

CANADA

QUEBEC

VALCARTIER GARRISON

Date: 22 April 2008

PRESIDING: LIEUTENANT-COLONEL L.-V. D’AUTEUIL, M.J.

HER MAJESTY THE QUEEN

(Prosecutor)

v.

CORPORAL J. DUBÉ

(Offender)

SENTENCE

(Rendered orally)                                        

OFFICIAL ENGLISH TRANSLATION

[1]                    Corporal Dubé, the Court having accepted and recorded your admission of guilt in respect of the first charge on the charge sheet, the Court finds you guilty of this charge.

[2]                    The military justice system constitutes the ultimate means to enforce

discipline in the Canadian Forces, which is a fundamental element of military activity in the Canadian Forces.  The purpose of this system is to prevent misconduct or, in a more positive way, promote good conduct. It is through discipline that armed forces ensure that their members will perform their missions successfully, confidently and reliably.

[3]                   As stated by Major Jean-Bruno Cloutier in his thesis “L’utilisation de

l’article 129 de la Loi sur la défense nationale dans le système de justice militaire canadien”:

[translation]                           

Ultimately, to maximize a mission’s chances of success, the chain of command must be able to enforce discipline in order to control misconduct that endangers good order, military effectiveness and, finally, the raison d’être of the organization, national security.

[4]                    The military justice system also ensures that public order is maintained

and ensures that persons charged under the Code of Service Discipline are punished in the same way as any other person living in Canada.

[5]                    It has long been acknowledged that the purpose of a separate system of

military courts or of military justice is to permit the Canadian Forces to deal with matters relating to the Code of Service Discipline and the maintenance of the effectiveness and morale of the troops. That said, any punishment imposed by a court, whether military or civil, must be as lenient as possible in the circumstances. This principle is in accordance with the duty of the Court to impose a punishment that is commensurate with the gravity of the offence and the previous character of the offender, as provided at subparagraph 112.48(2)(b) of the QR&O.

[6]                    In the present case, counsel for the prosecution and counsel for the

defence made a joint suggestion concerning the principles of the sentence to be imposed.  They recommended that the Court sentence you to a reprimand and a fine. However, they differed with respect to the amount of the fine the Court should impose. The prosecution suggested an amount of $1000, while your defence counsel argued that an amount of $300 would better reflect the applicable sentencing principles.

[7]                    The Court Martial is not bound by this recommendation. However, it is

well established in case law that there must be compelling reasons to enable the Court to disregard it. It is also generally recognized that the Court should accept the recommendation unless doing so would be contrary to the public interest or would bring the administration of justice into disrepute.

[8]                    The Court has taken into consideration the recommendations made by

counsel in light of the relevant facts as they emerge from the summary of the circumstances, and their significance.  It has also considered the submissions in light of the relevant sentencing principles, including those set out in sections 718, 718.1 and 718.2 of the Criminal Code, to the extent that those principles are not incompatible with the sentencing provisions under the National Defence Act. These principles are the following:

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

second, the punishment of the offender;

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

fourth, the separation, where necessary, of offenders from society, including from members of the Canadian Forces;

fifth, the imposition of sentences similar to those imposed on offenders who commit similar offences in similar circumstances; and

sixth, the rehabilitation and reintegration of the offender.

The Court also took account of the arguments made by counsel, as well as the case law they filed and the documents they introduced in evidence.

[9]                   The Court agrees with counsel for the prosecution that the need to protect

the public requires the imposition of a sentence that emphasizes general and specific deterrence.  Note that general deterrence means that the sentence imposed should deter not only the offender from re-offending, but also others in similar situations from engaging in the same prohibited conduct.

[10]                  Here the Court is dealing with an offence of possession without lawful excuse of an explosive substance contrary to subsection 82(1) of the Criminal Code, namely, a smoke grenade and two thunderflashes.  This is a serious offence against public order, but the Court intends to impose what it considers to be the minimum sentence applicable in the circumstances.

[11]                  In arriving at what it considers to be a fair and appropriate sentence, the

Court has also considered the following aggravating and mitigating factors.

[12]                  The Court considers the following to be aggravating factors:

a.  First, the objective seriousness of the offence. You have been found guilty of an offence under section 130 of the National Defence Act for possessing without lawful excuse an explosive substance contrary to subsection 82(1) of the Criminal Code. According to that subsection, any person who commits the offence in question is liable to imprisonment for a term not exceeding five years. This is, objectively, a serious offence;

b.  Second, the subjective seriousness of the offence. When, in 2005,  you committed the offence of taking possession of these substances without authorization, you displayed recklessness and a compete lack of judgment. First you deliberately lied in order to keep the explosive substances by declaring that you did not have any;

c.  Also, despite your knowledge of the minimal danger that these substances represented, you kept them in your home without taking any precautions, thereby exposing those close to you, who did not share your knowledge of the substances, to potential danger that could have led to injury, possibly even fatal, depending on the circumstances. Your mother’s alleged characterization of the substances as dynamite demonstrates that they were perceived as potentially dangerous;