Courts Martial

Citation: R. v. Private D. Desrosiers, 2009 CM 3006

 

Docket: 200873

 

STANDING COURT MARTIAL

5 SERVICE BATTALION

VALCARTIER GARRISON

COURCELETTE, QUEBEC

                                                                                                                                               

 

Date: 8 May 2009

                                                                                                                                               

 

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

                                                                                                                                               

 

HER MAJESTY THE QUEEN

v.

PRIVATE D. DESROSIERS

(Accused)

                                                                                                                                               

 

SENTENCE

(Rendered orally)

                                                                                                                                               

 

OFFICIAL ENGLISH TRANSLATION

 

[1]   Private Desrosiers, the Court Martial having accepted and recorded your admission of guilt in respect of the eleventh, twelfth, fourteenth, fifteenth, eighteenth, twenty‑first, twenty‑third, twenty‑fourth and twenty‑fifth counts, the Court now finds you guilty of these counts. The Court does not have to rule on the other counts, as they were all withdrawn by the prosecution with leave of the Court.

 

[2]   As the military judge presiding at this Standing Court Martial, it is my duty to determine the sentence.

 

[3]   The military justice system constitutes the ultimate means to enforce 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, promote good conduct. It is through discipline that armed forces ensure that their members will perform their missions successfully, confidently and reliably.

 

[4]   As stated by Lieutenant-Colonel 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.

 

[5]   The military justice system also ensures that public order is maintained and that persons charged under the Code of Service Discipline are punished in the same way as any other person living in Canada.

 

[6]   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 being said, the punishment imposed by any court, military or civilian, should constitute the minimum necessary intervention that is adequate in the particular circumstances of each 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 paragraph 112.48(2)(b) of the QR&O.

 

[7]   In this case, the prosecution and defence counsel have presented a joint submission on sentencing. They have recommended that the Court sentence you to 15 to 30 days’ imprisonment and that it then suspend the execution that sentence. 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 considered the submissions of counsel in light of the facts presented at this trial and of 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. Those principles are as follows: first, protection of the public, and in this case the public includes the interests of the Canadian Forces; second, punishment of the offender; third, the deterrent effect of the sentence, not only for the offender but also for any other person who might be tempted to commit such offences; fourth, separation, where necessary, of offenders from the rest of society, including members of the Canadian Forces; fifth, the imposition of sentences similar to those imposed on offenders for similar offences committed under similar circumstances; and sixth, the rehabilitation of the offender and reintegration of the offender into society. The Court has also considered the representations made by counsel, including the case law cited, even if not submitted, the witnesses heard and the documentation introduced.

 

[9]   The Court agrees with counsel for the prosecution that the need to protect the public requires the imposition of a sentence that emphasizes first general deterrence, then denunciation. It is important to remember that the principle of 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 three offences of acts to the prejudice of good order and discipline for having used a drug contrary to article 20.04 of the QR&O and having refused to provide a sample of urine for drug detection contrary to article 20.06 of the QR&O, two offences for having failed to comply with a requirement under Division 3 of the National Defence Act because you allegedly failed to report to your unit or the military police, one offence for having wilfully damaged public property, that is, a military police patrol car, and three offences for having absented yourself from your unit or your Return to Work Program without leave. These are serious offences, but the Court will 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 factors to be aggravating:

 

a.       First, the objective seriousness of the offences. You have been found guilty of three offences under section 129 of the National Defence Act for acts to the prejudice of good order and discipline and for conduct to the prejudice of good order and discipline. These offences are punishable by dismissal with disgrace from Her Majesty’s service or less punishment. You have also been found guilty of two offences under section 101.1 of the National Defence Act for having failed to comply with a requirement under Division 3 of that Act, one offence under paragraph 116(a) of the National Defence Act for having wilfully damaged public property and three offences under section 90 of the National Defence Act for having absented yourself without leave. These six offences are punishable by imprisonment for less than two years or to less punishment. These are objectively serious offences.

 

b.      Second, the subjective seriousness of the offences. Your difficult marital relationship and your problem controlling your impulsive behaviour, combined with your drug use, have resulted in conduct and actions that have become entirely inappropriate in a military environment. Despite the monitoring measures that have been imposed on you, you have deliberately and repeatedly flouted the fundamental values of all soldiers, which are to respect the dignity of all persons, obey lawful authority and serve one’s country before oneself. You did so with complete disregard for the impact your actions might have on your peers and the missions assigned to your unit.

 

c.       Third, your previous offences listed on your conduct sheet. The nature and number of those offences reveal that the fines and periods of incarceration that were imposed on you failed to make you understand that it was time to change your attitude and conduct.

 

[13]           The Court considers the following factors to be mitigating:

 

a.       Your plea of guilty is clearly a sign of remorse and of your sincere intention to remain a valid asset to Canadian society.

 

b.      Your major change in attitude since the commission of the alleged offences. It appears that, on becoming aware of the fundamental problems underlying your problematic conduct, you initiated a process that allowed you to more fully understand the serious harm you were causing to those around you and yourself. This kind of remorse was necessary for you to begin your rehabilitation, which you were able to do.

 

c.       The fact that you have stopped all drug use and have taken measures to remain drug‑free.

 

d.      Your efforts to control your problems causing your impulsive behaviour. By voluntarily agreeing to be supervised in a halfway house, you have shown courage and determination. Failure is part of success, and although everything does not always turn out as it should, you have been able to make great strides. It is your tenacity, which seems to be one of your great qualities, which to date has kept you from falling into a life of delinquency. The Court can only commend you for your efforts and encourage you to continue in this direction.

 

e.       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 some of your colleagues, has no doubt had a very significant deterrent effect on you and on them. The message is that the kind of conduct that you displayed will not be tolerated in any way and will be dealt with accordingly.

 

f.       The fact that you have found a job and are currently actively searching for living accommodations.

 

g.      Your release from the Canadian Forces under Item 2(a). Even though, in and of itself, it does not constitute a sentence, it is important to understand that your release from the Canadian Forces was an administrative sanction for your conduct underlying the offences of which you have been found guilty or your past offences. Your exclusion from the Canadian Forces sends a clear deterrent message to all members that such conduct can lead to this kind of consequence.

 

[14]           Regarding the imposition of a sentence of imprisonment by this Court on Private Desrosiers, it was established through the Supreme Court of Canada’s decision in R. v. Gladue, [1999] 1 S. C. R. 688, at paragraphs 38 and 40, that imprisonment should be the penal sanction of last resort. The Supreme Court noted that incarceration in the form of imprisonment is appropriate only where no other sanction or combination of sanctions is appropriate for the offence and the offender. This Court feels that these principles are relevant in the context of military justice, taking into account, nonetheless, the important differences between the sentencing rules that apply to a civilian court hearing a criminal or penal case and the rules that apply to a military court whose powers of punishment are set out in the National Defence Act.

 

[15]           Moreover, this approach was reaffirmed by the Court Martial Appeal Court in R. v. Baptista, 2006 CMAC 1, at paragraphs 5 and 6, where it held that imprisonment should be imposed only as a last resort.

 

[16]           The civilian criminal justice system has its own unique features, such as a conditional sentence, which differs from probationary measures but is nonetheless a genuine prison sentence, is applied according to different terms, and allows the offender to serve his or her custodial sentence in the community, where it is possible to combine the punitive and corrective objectives, as indicated by the Supreme Court in Proulx. The military justice system, however, has disciplinary tools such as detention, which seeks to rehabilitate service detainees and re-instill in them the habit of obedience in a military framework built around the values and skills unique to members of the Canadian Forces. Detention can have a significant effect in terms of denunciation and deterrence, while at the same time not stigmatizing service detainees to the same degree as members of the military who are sentenced to imprisonment, as stated in the Notes added to articles 104.04 and 104.09 of the QR&O.

 

[17]           However, in the case of a member of the Canadian Forces who has already been released, the objectives of a sentence of detention are no longer relevant, and only the remaining form of incarceration specified in the scale of punishments, which is imprisonment, must be considered.

 

[18]           In this case, the nine offences for which the offender has pleaded guilty are disciplinary in nature. However, their number and seriousness, together with the record of similar offences, may justify a sentence of incarceration. For these reasons, it seems clear to this Court that incarceration in the form of imprisonment is the only appropriate sanction and that there is no other sanction or combination of sanctions that is appropriate for the offences and the offender.

 

[19]           Therefore, the Court considers that a sentence of imprisonment is necessary to protect the public and maintain discipline.

 

[20]           However, the Court is also of the view that it has been established, owing to the serious efforts made by the offender to date to rehabilitate himself and the real possibility that he may lose his job, that there are exceptional circumstances in this case warranting the suspension of this sentence of incarceration.

 

[21]           Lastly, I wish to emphasize, Private Desrosiers, that the Court fully recognizes all of the efforts you have made thus far to once again become an asset to society at large. The Court can only encourage you to continue your efforts, which are driven by your profound desire to become a better person and a better father. I am sure that your daughter Ève will one day be able to express her pride and gratitude if you succeed in attaining the goals you have set for yourself. I hope that today you will at least have realized that the efforts you have made since your release from the Canadian Forces to date have allowed this Court to recognize your desire to become a better person and an asset to society, which explains, among other things, the Court’s decision regarding your sentencing.

 

[22]           The Court believes that the joint submission is not unreasonable in these circumstances. Consequently, the Court accepts the joint submission made by counsel, sentences you to 30 days’ imprisonment and suspends the execution of that sentence, given that counsel’s recommendation is not contrary to the public interest and will not bring the administration of justice into disrepute.

 

[23]           Private Desrosiers, stand up. The Court sentences you to 30 days’ imprisonment and suspends the execution of that sentence.

 

[24]           The proceedings relating to the Standing Court Martial of Private Desrosiers are now concluded.

 

 

 

LIEUTENANT-COLONEL L.-V. D'AUTEUIL, M.J.

 

Counsel:

 

Captain P. Doucet, Regional Military Prosecutor, Eastern Region

Office of the Director of Military Prosecutions

Prosecutor

 

Mr. H. Bernatchez, Bernatchez et associés, 209 Chemin du Roy

Deschambault, Quebec, G0A 1S0

Counsel for Private Desrosiers