Courts Martial

COURT MARTIAL

 

Citation:  R. v. Bakker, 2010 CM 3015

 

                                                                                                                  Date:  20100705

                                                                                                                  Docket:  201021

 

                                                                                                        Standing Court Martial

 

                                                                                                              Asticou Courtroom

                                                                                                  Gatineau, Québec, Canada

 

Between: 

 

Her Majesty the Queen

 

- and -

 

Second-Lieutenant D.H. Bakker, Offender

 

 

Before:  Lieutenant-Colonel L.-V. d'Auteuil, M.J.

 

 

REASONS FOR SENTENCE

 

(Orally)

 

[1]               Second-Lieutenant Bakker, having accepted and recorded a plea of guilty in respect of the first and second charge on the charge sheet, the court now finds you guilty of both charges.

 

[2]               It is now my duty as the military judge who is presiding at this Standing Court Martial to determine the sentence.

 

[3]               The military justice system constitutes the ultimate mean to enforce discipline in the Canadian Forces which is a fundamental element of the military activity.  The purpose of this system is to prevent misconduct or in a more positive way, see the promotion of good conduct. It is through discipline that an Armed Force ensures that its members will accomplish in a trusting reliable manner successful missions.  It also ensures that public order is maintained and that those who are subject to the Code of Service Discipline are punished in the same way as any other person living in Canada.

 

[4]               It has been long recognized that the purpose of a separate system of military justice or tribunal is to allow the Armed Forces to deal with matters that pertain to the respect of the Code of Service Discipline and the maintenance of efficiency and the morale among the Canadian Forces.  That being said, the punishment imposed by any tribunal, military or civilian, should constitute the minimum necessary intervention that is adequate in the particular circumstances.  It also goes directly to the duty imposed to the court to:  "impose a sentence commensurate to the gravity of the offence and the previous character of the offender," as stated at QR&O 112.48 (2)(b).

 

[5]               Here in this case, the prosecutor and the offender's defence counsel made a joint submission on sentence to be imposed by the court.  They recommended that this court sentence you to severe reprimand and a fine in the amount of $2,000 in order to meet justice requirements.

 

[6]               Although this court is not bound by this joint recommendation, it is generally accepted that a court should not depart from it unless it has cogent reasons such as it is unfit, unreasonable, would bring the administration of justice into disrepute or be contrary to the public interest.

 

[7]               The court has considered the joint submission in light of the relevant facts set out in the statement of circumstances and their significance and I have also considered the joint submission in light of the relevant sentencing principles including those set out in sections 718, 718.1 and 718.2 of the Criminal Code when those principles are not incompatible with the sentencing regime provided under the National Defence Act.  These principles are the following:

 

Firstly, the protection of the public and the public includes the interest of the Canadian Forces;

 

Secondly, the punishment 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 offence;

 

Fourthly, the reformation and the rehabilitation of the offender;

 

Fifthly, the proportionality to the gravity of the offence and the degree of responsibility of the offender; and

 

Sixthly, the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

 

The court has also considered the representations made by counsel and the documentation introduced including the agreed statement of facts and the testimony of the offender.

 

[8]               I must say that the protection of the public must be ensured by a sentence that would emphasize on principles of denunciation and general deterrence. It is important to say that general deterrence means that the sentence imposed should deter not simply the offender from reoffending, but also others in similar situations from engaging for whatever reasons in the same prohibited conduct.

 

[9]               Here the court is dealing with two offences involving the unauthorized absence of Second-Lieutenant Bakker from his place of duty.  It is not a serious offence per se as defined in the National Defence Act, additionally, it may be considered a minor offence if it falls in the parameters described at QR&O article 108.17(1).  However, it is a purely military offence that goes to the heart of military discipline and the court will impose what it considers to be the necessary minimum punishment in the circumstances.

 

[10]           In arriving at what the court considers a fair and appropriate sentence, the court has considered the following mitigating and aggravating factors:

 

a.                   The court considers as aggravating the objective seriousness of the offences.  The offences you were charged with were laid in accordance with section 90 of the National Defence Act for being absented without leave.  These offences are punishable by an imprisonment for less than two years or to less punishment.

 

b.                  Secondly the subjective seriousness of the offences in that for the court it covers three aspects:

 

                                                  i.                  The first aggravating factor from a subjective perspective is the lack of loyalty, integrity and judgement you had when you committed those two offences.  You have a lot of experience both in the Reserves and the Regular Force in the Canadian Forces.  You were an NCM so probably you occupied at least leadership positions.

 

            You have a good knowledge about what is leadership and what are those principles such as loyalty, integrity and having judgement.  Your rank as an officer, I know it's low, but you are an officer and I think it is an important factor.  Your age, you just turned 37, I think, and it means that you have kind of maturity; you know better than that, I'm pretty sure.  There are some principles that guide Canadian Forces members such as, "Serve Canada before self" and "Obedience support lawful authority."  I think for a short moment you forgot those two principles, and you explained why but you forgot them.  Basically, I understand that in the CEOTP program, there's some kind of confusion how to conduct this program, but no matter what is the confusion, you made the decision to not inform your chain of command, and it was your own decision about the fact that your acceptance in the program allowing you to study on a fulltime basis was cancelled.  And I think it is the starting point and it relies on—you testified that you realized that.  This program, if I understand correctly, is designed to allow to fill some kind of shortcoming in specific trades in the Canadian Forces.  So as explained by your counsel, the main purpose is to fill the trade.  So the main purpose is for you to get the training, but I understand also that in the kind of trade you're in, there is some difficulties with the training.  So there is a long period of time where you have to—you're still an untrained officer and because of that you put first the second objective of the program, it's having officers educated.  Training and education are two different things and it's an aggravating factor in the sense that you didn't get exactly the sense of this program.  Now, I think, being in this court you understand that training was your first objective and education was the second one, but you put education as the first objective.

 

                                                ii.                  The other aggravating factor is the length of the absence; no matter what, it's clear that being away from your place of duty for the first time, 3 1/2 months, and the second time, over a month, until you were called back at your place of duty, it's a long time.

 

                                              iii.                  Third, and the last aggravating factor I consider is what we call basically "premeditation." It's the repetitive aspect, when somebody does it once, sometime it's very short you think quickly and then you do it, but during the second summer you did exactly the same thing without informing anybody.  So the chain of command assumed that you were authorized to be away for the exact same reason.  So doing that includes the fact that there was some sort of planning in order to achieve your goal which was education, to complete your education in the program.

 

            They are the three main aggravating factors I see.

 

[11]           There is also mitigating factors that I consider:

 

a.                   First, there is your guilty plea.  Through the facts presented to this court, the court must consider your guilty plea as a clear genuine sign of remorse and that you are very sincere in your pursuit of staying a valid asset to the Canadian Forces and disclose also the fact that you are taking full responsibility for what you did.  Also my understanding is that you have been very cooperative after the chain of command found out the problem which goes exactly in the same way you are taking full responsibility for what you did and you must have the credit for that.

 

b.                  I mentioned as an aggravating factor and now it's also a mitigating factor is your age and experience.  Because of that and because you had a good career so far in the Canadian Forces, I think it has to be considered as a mitigating factor because of your age and your experience, you know well what you did and you can right away change your attitude and I don't think that you will do this again.  I think it's clear for me so it's mitigating in that sense.

 

c.                   The absence of a conduct sheet so there is no indication of the commission of any similar offence, military offence or criminal offence in relation or not to what happened so the absence of a conduct sheet is a mitigating factor.

 

d.                  Also, there is the fact that you had to face this court martial.  I think you expressed that in your testimony in a way or another because you mentioned that it was not the first set of charges you saw, meaning by this that there was some probably negotiations and some position taken by the prosecution and because they vary their approach to your case and the fact that you were brought here is a mitigating factor.  I'm pretty sure it has had already some deterring effect on you but also on others.

 

e.                   The absence of any impact on your place of duty.  I haven't heard any evidence that the fact that you were away for a long period had any impact, I have nothing to infer—I don't have any evidence to rely on in order to infer that because you were not there, there was an additional burden on your colleagues at your place of duty.  In fact, reality is that the chain of command agreed, in some way, in your absence though probably they considered the fact that having you away from the place of duty wouldn't impact much on what they had to do.  So in that sense, I can consider that your absence had no real impact on the work they had to do.

 

f.                   I also consider as a mitigating factor your family situation at the time of the commission of the offence.  I think it's a context that must be considered to understand clearly what happened but also for me to arrive at the proper sentence to impose.

 

[12]           The court reiterates that a severe reprimand must be seen as a serious punishment in the military context.  It is higher on the scale of punishment than a fine, whatever the amount of the fine.  It reflects that there is some reason to have doubts about somebody's commitment at the time of the offence and it reflects consideration given to the seriousness of the offence committed, but it also means that there is good hope for rehabilitation.

 

[13]           Also, if the court accepts the suggestion made by counsel, this punishment will remain on your conduct sheet unless you get a pardon for the criminal record you are getting today.  Reality is that your conviction will carry out a consequence that is often overlooked, which is that you will now have a criminal record and it is not insignificant.

 

[14]           I will tell you, it's just a comment I would like to make before I close, I provide my conclusion in my decision.  It is an unusual AWOL in the sense that I understand clearly what you were trying to achieve.  There was some issue in your family and also the fact that you wanted to fulfill your obligation to have a degree as soon as possible and the period of time or the time you had to this was there.  The manner to achieve this was not necessarily appropriate in the circumstances because of all kind of regulations and the way the Canadian Forces have to achieve this kind of program.  I hope that the Canadian Forces will have a serious look in their program, in the way they manage the program to avoid a situation such as this one when some people for a good purpose try to do something imposed by the program.  You had to get a degree, you had 12 years to do this but you decided to do it as soon as possible, but the wrong way.  I'm pretty sure I won't see you again in a court martial or anywhere else and I hope you will find your way in the right trade for your situation.

 

[15]           So at this stage, the court will accept the joint submission made by counsels to sentence you to a severe reprimand and a fine in the amount of $2,000 considering that it is not contrary to the public interest and will not bring the administration of justice into disrepute.

 

[16]           Second-Lieutenant Bakker, please stand up.  Therefore the court sentences you to a severe reprimand and a fine in the amount of $2,000.  The fine is to be paid in monthly instalments of $200 each commencing on the 1st of August, 2010, and continuing for the following nine months.

 

Counsel:

 

Captain E. Carrier, Canadian Military Prosecution Service

Counsel for Her Majesty the Queen

 

Major E. Charland, Directorate Defence Counsel Services

Counsel for Second-Lieutenant D.H. Bakker