Courts Martial

COURT MARTIAL

 

Citation: R. v. Bélanger, 2010 CM 3011

 

Date: 20100518

Docket: 201005

 

Standing Court Martial

 

Régiment de Maisonneuve

Montréal, Quebec, Canada

 

Between:

 

Her Majesty the Queen

 

- and -

 

Sergeant L.C. Bélanger, Offender

 

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

 

 

OFFICIAL ENGLISH TRANSLATION

 

REASONS FOR SENTENCING

[1]               Sergeant Bélanger, the Court Martial having accepted and recorded your admission of guilt on the second count, the Court now finds you guilty of this count. Since the prosecution decided to withdraw the first and third counts on the charge sheet at the beginning of this trial, the Court has no other counts of which it must dispose.

[2]               As the military judge presiding at this Standing Court Martial, it now falls to me to determine the sentence.

[3]               In the special context of an armed force, the military justice system constitutes the ultimate means of enforcing discipline, 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, to promote good conduct. It is through discipline that an armed force ensures that its members perform their missions successfully, confidently and reliably. The military justice system 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. It has long been recognized that the purpose of a separate system of military justice or courts is to allow the Canadian Forces to deal with matters that pertain to the Code of Service Discipline and the maintenance of the effectiveness of the troops’ morale. That said, the punishment imposed by any court, military or civilian, should constitute the minimum necessary intervention that is adequate in the particular circumstances of the case. It also goes directly to the duty imposed on the Court to impose a sentence commensurate with the gravity of the offence and the previous character of the offender, as stated at subparagraph 112.48(2)(b) of the QR&O.

[4]               Counsel presented a joint submission. They recommended that the Court sentence you to a $1000 fine. The Court Martial is not bound by this recommendation. However, it is well established in case law that there must be compelling reasons for 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 bring the administration of justice into disrepute.

[5]               Imposing a sentence is the most difficult task for a judge. As the Supreme Court of Canada recognized in R. v. Généreux,[1] “To maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently”. It emphasized that, in the particular context of military justice, 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. However, the law does not allow a military court to impose a sentence that would be beyond what is required in the circumstances of a case. In other words, any sentence imposed by a court must be adapted to the individual offender and constitute the minimum necessary intervention, since moderation is the bedrock principle of the modern theory of sentencing in Canada.

[6]               The fundamental purpose of sentencing in a Court Martial is to ensure respect for the law and maintenance of discipline by imposing sanctions that have one or more of the following objectives:

a.            to protect the public, which includes the Canadian Forces;

b.           to denounce unlawful conduct;

c.            to deter the offender and other persons from committing the same offences;

d.           to separate offenders from society, where necessary; and

e.            to rehabilitate and reform offenders.

[7]               When imposing sentences, a military court must also take into consideration the following principles:

a.            a sentence must be proportionate to the gravity of the offence;

b.            a sentence must be proportionate to the responsibility and previous character of the offender;

c.             a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

d.            an offender should not be deprived of liberty, if applicable in the circumstances, if less restrictive sanctions may be appropriate in the circumstances. In short, the Court should impose a sentence of imprisonment or detention only as a last resort, as was established by the Appeal Court and the Supreme Court (and when I refer to the Appeal Court, I mean the Court Martial Appeal Court); and,

e.             lastly, all sentences should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

[8]               The Court has concluded that sentencing should focus on the objectives of general deterrence and denunciation.

[9]               Sergeant Bélanger, you have pleaded guilty, and the Court has recorded and accepted your plea of guilty to an offence charged under section 116 of the National Defence Act for having lost non‑public property by neglect or, more specifically, for having lost $6673.18 in non‑public funds, while you were chief clerk in the 2nd Field Reserve unit. Essentially, the circumstances noted by the Court are as follows. After you began this job in 2006, you accumulated other duties until at least 2008. You held, among other positions, that of finance sergeant for the unit. At some point, you were also assigned or had to perform some or all of the duties of the unit adjutant of the Regular Force. Part of your duties then included managing, and more specifically receiving, non‑public funds belonging to the unit, that is, the unit’s messes. Your job was essentially to issue receipts, if I understand correctly, for money that you received and to deposit that money.

[10]           It seems that, according to standard practice for finance sergeants and the directives that applied at the time, non‑public funds could be accumulated. You could accumulate a certain amount in a secure location, and these sums—up to approximately $1000—could be kept in a secure location. Then, you would have to consider depositing this money, which was crucial to ensuring the proper operation of the non‑public funds. As we know, non‑public funds are used for, among other things, activities for the troops’ well‑being and morale. You were advised by 34 Brigade accounting authorities that the figures for the deposits and cash receipts did not match up or you were supposed to make deposits. Under the circumstances, you apparently neglected to make the deposits. You let these sums of money accumulate, with the result that you were keeping a very large sum of money in a location that was not always secure, according to the statement of circumstances. At a certain point, the Brigade’s financial authorities wanted to know what was going on, so they came while you were away sick, to find out where the money was. They discovered that the money was not there, that there was no money being kept in the usual secure location. You were questioned and answered to the best of your knowledge. In the end, you admitted that you may have disposed of the money in disposing of other property in your workplace. Thus, you were repeatedly neglectful in terms of the amount: you accumulated sums of money such that a large amount was lost. You began working in September 2006, but it was from November 2007 to April 2008 in particular that your repeated neglect was most blatant, as I understand the explanations and the statement of circumstances.

[11]           As I stated earlier, a sentence must be adapted to the aggravating and mitigating factors. Let us begin with the aggravating factors. You have been found guilty of an offence under paragraph 116(a) of the National Defence Act, which provides for imprisonment for less than two years or less punishment. The maximum sentence is an objective indication for the Court of the gravity of the offence compared with all of the offences under the Code of Service Discipline. The Code of Service Discipline has a number of offences, with varying maximum sentences. A sentence of imprisonment for less than two years or less punishment is an objective indication for the Court that this is a relatively serious offence. Being found guilty of such an offence is not a minor issue.

[12]           As regards the subjective aggravating factors, the Court notes three factors. To begin with, this is a type of breach of trust, and the reason why I call it “a type of breach of trust” is that one should look at—the Court began by looking at the kinds of duties involved. You were assigned a job of a financial nature. You were entrusted with money that was essential for the operation of non‑public funds, and, at the time, you were trusted because it was thought that you would have no problems doing that job. You were also trusted because of your rank and training. As you were a sergeant with several years’ experience in the Canadian Forces and trained in finance as well, you were expected to be familiar with the way non‑public funds worked and to be able, at a minimum, to at least handle this kind of money properly, which you did not do.

[13]           As such, you cannot say that you were not warned. The Court takes into consideration the fact that you had received prior warnings. You were told, and there were already signs that something was wrong, and you were not left alone. You were told that there was perhaps a problem and that you had to be more careful in making deposits more frequently or in making your deposits. There was no indication of fraud or an attempt to conceal anything, but there was something wrong, and you did not react to those signs, and it was in that sense that you had been trusted. You were told, “You are the chief clerk. You were trained in finance. There is a problem. You are being trusted”. You were told that you had the training and experience needed to understand the signals you were receiving, and it seems that you were not receptive to that.

[14]           Regarding the issue of security standards, members, as you know, are trained in security. We learn to recognize what is more sensitive material and what is not. Money, as you know, is something sensitive, less so when it is a matter of a few dollars, but when we are talking about a sum of money like the one you had in your hands, we are talking about something quite serious, and you, especially as a chief clerk, know that there are security standards connected with that. This is a position that you have held before and that you were holding then. You had to know that it was something to which others could not have access. You were also a little neglectful in handling that money in a secure manner, in leaving it there to avoid confusion, then throwing it aside with other things, and you did not do that. In that sense, it is also somewhat of a breach of trust. Certain things were expected of you, and you did not meet these expectations because you were trusted.

[15]           There is also the fact that it surely had certain consequences for the troops and the unit. Profits were lost. There are activities to be organized for the troops and the unit, and this is money that they will never recover, from what I understand. In that sense, the unit as a whole trusted you, and you failed them.

[16]           I also considered another subjective aggravating factor, which is the recurring nature of the neglect. It is the sum of all of the neglectful acts that makes the offence more serious than it would otherwise have been. That is, it was not a single, one‑time transaction. You were given several sums of money, you put them aside, and you accumulated them. When you lost that money, well, the amount was much more substantial. As your counsel noted, had you at least followed the directives on deposits, less might have been lost under the circumstances.

[17]           The last subjective aggravating factor that I considered is the amount. Over $6000 is a substantial amount, and good things could have been done with it. In addition, from what little I know about non‑public funds and from what I understand of the circumstances, you were not given $5000 plus $1000; you were handed small amounts that combined to form one large amount, and the size of that amount is serious under the circumstances. It is an aggravating factor. You understand that, if were talking about a few hundred dollars, it would be less serious. It would still be serious, because money is involved, but when we are talking about thousands of dollars, it is a little bit more serious still. It adds to the aggravating factors.

[18]           Regarding the mitigating factors, obviously this Court takes into account your guilty plea, by which you show that you are remorseful and sincere in your intention to remain a valid asset to the Canadian Forces and to Canadian society. In addition, as your counsel stated, that you cooperated with the authorities in an attempt to resolve the problem is also a mitigating factor under the circumstances. You never tried, from what I understand, to hide what happened. You cooperated with the authorities and admitted your guilt. Therefore, all of these elements are consistent and constitute a mitigating factor that plays in your favour. There is the fact that you have no criminal record whatsoever. Your performance at work, as your counsel pointed out—I carefully reviewed your performance. I understand that your environment has changed, and you have switched units. You have a lighter workload, and I infer from the circumstances that you have been assigned responsibilities that correspond to your strengths, your abilities, namely, administration and chief clerk duties. In that sense, you have responded very positively, because the final two annual performance reports testify to that effect. Therefore, if placed in the right situation and not overburdened with other duties that may take you away from your main duties, you have no problems performing successfully. This is a mitigating factor that the Court must take into consideration.

[19]           Also considered was the accumulation of the duties that you inherited in the unit during the period of the commission of the offence. This element, which was perhaps not clear to the Court on reading the statement of circumstances or assessing the evidence, but which became clearer following my questions and counsel’s answers, is a mitigating factor. In this regard, members must perform multiple tasks, which is a part of members’ daily lives, and you experienced this in your duties, your responsibilities as chief clerk. However, there is a limit to the number of duties that can be assigned, not because of one’s rank or experience, although this may be a factor, but also for one’s own well‑being. If all of the unit’s operations fall to the chief clerk, who accumulates an incredible amount of duties to ensure that the unit runs smoothly, and it is just about one person or, if not one single person, a few individuals, there is a problem. This is the problem that had to be carefully looked at by the unit. I do not believe that the unit acted in bad faith, but it was probably morally—but not legally—at fault. There were surely other approaches that would have prevented your situation in the performance of your duties from worsening, and it might have greatly helped you then to have fewer duties and therefore be less negligent with the money that had been entrusted to you. Thus, in that sense, the accumulation of duties is a mitigating factor that characterizes this case, since often a reprimand and a fine are standard in these kinds of cases. However, I think that this is one of the factors, together with the others, that mean that this case may lead to the acceptance of counsel’s joint submission.

[20]           There is also the fact that, during the most intense period referred to in the statement of circumstances, namely, November 2007 to April 2008, your attendance was more sporadic, even though your duties or responsibilities in the unit increased.

[21]           Another mitigating factor is the partial restitution—the undertaking to restore part of the sums as such, in fact. This action shows your willingness to ensure that, even though this was caused by neglect—meaning, you did not steal anything, you did not take anything; you lost something—you are accepting responsibility nonetheless. It is yet another action showing the Court that you are assuming responsibility for what happened.

[22]           There is also the fact that you had to face this Court Martial, which was announced and accessible to the public and which took place in the presence of certain people, some of your colleagues, certain members whom you see at work. This most likely has a deterrent effect on you and on them as well. Essentially, the message is that the kind of conduct that you displayed will not be tolerated in any way and will always be dealt with accordingly.

[23]           Another mitigating factor that I considered is your financial situation, described in the joint summary of facts presented by your counsel and admitted as evidence in this case. You bear many financial responsibilities, such that this is a factor that the Court will take into account, especially in imposing the joint submission of a fine in the circumstances.

[24]           Sergeant Bélanger, I understand the overall context in which the events leading to the commission of the offence occurred. I also understand that you have recently been taken out of that context and have decided to take the bull by the horns somewhat, to ensure that you remain a positive element and that you share your experience and expertise with the Canadian Forces. This shows that you have approached and are viewing the events in a positive manner. Essentially, you have decided to do better instead of letting yourself be discouraged by everything that has happened in that context. In that regard, I must recognize that this is a good thing and above all encourage you to carry on. I do not know what you will do in the future. Counsel have mentioned that there is the possibility of a medical release. I understand that this was not a determining factor in this case, but, if I rely solely on your performance at work, I understand that you are in an environment where you are doing well, and I encourage you to continue. If you leave the Canadian Forces, I hope that you will keep the same positive attitude as well as fond memories of your time in the Canadian Forces, if you decide to leave.

[25]           That said, the Court finds that the joint submission made by counsel is reasonable under the circumstances. Accordingly, it accepts the joint recommendation made by counsel to sentence you to a $1000 fine, considering that this submission is not contrary to the public interest and would not bring the administration of justice into disrepute.

[26]           Sergeant Bélanger, stand up. The Court therefore sentences you to a $1000 fine. The fine is to be paid in consecutive monthly instalments of $200 beginning on 1 June 2010 and continuing for the following four months. If, for whatever reason, you are released from the Canadian Forces before the fine is paid in full, the then outstanding amount is due and payable prior to your release.

Counsel:

Major J. Caron, Canadian Military Prosecution Service

Counsel for Her Majesty the Queen

Lieutenant-Commander P.D. Desbiens, Directorate of Defence Counsel Services

Counsel for Sergeant L.C. Bélanger