Citation: R. v. Corporal B.L. Harris, 2009 CM 3013
Docket: 200877
STANDING COURT MARTIAL
CANADA
NEW BRUNSWICK
CANADIAN FORCES BASE GAGETOWN
Date: 26 July 2009
PRESIDING: LIEUTENANT-COLONEL L-V. D'AUTEUIL, M.J.
HER MAJESTY THE QUEEN
v.
CORPORAL B.L. HARRIS
(Offender)
SENTENCE
(Rendered Orally)
[1] Corporal Harris, having accepted and recorded a plea of guilty in respect of
the second charge on the charge sheet, the court finds you now guilty of that charge. Consequently, the court directs that the proceedings be stayed on the first charge. The third charge being withdrawn by the prosecutor, the court has no other charge to consider for this court martial.
[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 means 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 it's members will accomplish, in a trusty and 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 tribunals 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 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 with the gravity of the offences and the previous character of the offender, as stated at QR&O article 112.48 (2)(b).
[5] Here in this case, the prosecutor and the offender’s defence counsel made a joint submission on sentence. They recommended that this court sentence you to a fine in the amount of $200 and to confinement to barracks for a period of five days.
[6] Although this court is not bound by this joint recommendation, it is generally accepted, as mentioned by the Court Martial Appeal Court at paragraph 21 in it's decision of Private Taylor v. R., [2008] C.M.A.C. 1, quoting the decision of R. v. Sinclair at paragraph 17 that:
[17] The sentencing judge should depart from the joint submission only when there are cogent reasons for doing so. Cogent reasons may include, among others, where the sentence 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 the Agreed Statement of Facts and their significance, and I've 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 offences;
Fourthly, the reformation and 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.
[8] I must say that I agree with the prosecutor when he expressed the view that the protection of the public must be ensured by a sentence that would emphasize mainly specific 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. It is also important to say that some consideration must be given to rehabilitation in this case.
[9] Here, the court is dealing with a pure military offence for having fought on a defence establishment with a fellow service member further to an argument between two soldiers for which the offender was not part of. This type of offence goes to the integrity and mutual trust that must exist among soldiers in order for them to accomplish the Canadian Forces' mission. However, 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. The court considers as aggravating:
The objective seriousness of the offence. The offence you were charged with was laid in accordance with section 86(a) of the National Defence Act for having fought with a person subject to the Code of Service Discipline. This offence is punishable by an imprisonment of less than two years or to less punishment;
The subjective seriousness of the offence. You engaged yourself in a fight with another soldier on a defence establishment and in front of other fellow soldiers further to an argument you were not part of. Instead of trying to calm down the situation or to consider any other resolution means to avoid a fight, you decided to physically challenge your assailant. Considering your experience and your rank, you should have known that it was not a responsible way to sort out such matters; and
Moreover, in result of your conduct, the other soldier you were involved with in the fight suffered swelling and bruising on his face and he felt insecure for some period of time.
[11] The court considers that the following circumstances mitigate the sentence:
Through the facts presented to this court, the court also considers that your plea of guilty is 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 the Canadian community. It disclosed the fact that you’re taking full responsibility for what you did;
The fact that you did not have a conduct sheet or criminal record related to similar offences;
Your age and your career potential as a member of the Canadian Forces. Being 25 years old, you still have many years ahead to contribute positively to the Canadian Forces;
Your record of service in the Canadian Forces. It appears from the evidence produced before this court that you are an excellent soldier, have good skills, and that you are dedicated to your unit and trusted by your chain of command to the extent that your were sent on your leadership course despite what you did;
The fact that it is an isolated and spontaneous incident and that no such similar conduct occurred after the commission of the offence. Reality is that you never planned to do such thing which clearly discloses the absence of any premeditation; and
The fact that you had to face this court martial. It has had already some deterrent effect on you and also on others. The court is satisfied that you will not appear before a court for a similar or any offence in the future.
[12] As I stated earlier on the Charter application presented by Corporal Harris at the beginning of these proceedings, I made the finding that his right to not be arbitrarily detained pursuant to section 9 of the Charter was violated further to his arrest and detention by the military police on 23 September 2007 at CFB Borden. And consequently, if this Standing Court Martial reached the sentencing procedure stage, I concluded that I would reduce the sentence as a remedy pursuant to subsection 24(1) of the Charter.
[13] Both counsel guaranteed me that their joint submission on sentence did consider the Charter ruling I made previously. Further to questions I ask to both lawyers on that specific matter, I got from them that it is mainly the effect of the Defence Administrative Order and Directives (DAOD) 7006-1, which is about the removal of the conduct sheet entry upon completion of any period of 12 months, starting after the sentence was fully served, and during which no conviction has been entered, that was considered as a factor to mitigate the sentence.
[14] Put differently, if the court imposes on the offender a lenient punishment as a Charter remedial effect, it would benefit him by the removal of the related entry on his conduct sheet. Essentially, his conviction resulting from this court martial will disappear from his conduct sheet upon completion of any period of 12 months during which no other conviction has been entered.
[15] I agree with counsel that by accepting the joint submission they made, it would reflect the decision made by this court to mitigate the sentence in result of the offender's Charter application. Mainly, the mitigating effects of the court's Charter decision are reflected through the fact that because of it, the court is limiting, on a short term basis, the impact of the sentence on the offender.
[16] In consequence, the court will accept the joint submission made by counsel to sentence you to a fine in the amount of $200 and to confinement to barracks for a period of five days, considering that it is not contrary to the public interest and would not bring the administration of justice into disrepute.
[17] Corporal Harris, please stand up. Therefore, the court sentences you to a fine in the amount of $200 and to confinement to barracks for a period of five days.
[18] The proceedings of this Standing Court Martial in respect of Corporal Harris are terminated.
LIEUTENANT-COLONEL L-V. D'AUTEUIL, M.J.
COUNSEL
Major P. Rawal, Canadian Military Prosecution Service
Counsel for Her Majesty the Queen
Captain M.A. Pecknold, Canadian Military Prosecution Service
Assistant Counsel for Her Majesty the Queen
Major M.T. Poland, Directorate of Defence Counsel Services
Counsel for Corporal B.L. Harris
Captain D.L. Eastlake, Combat Training Centre Deputy Judge Advocate Gagetown
Assistant Counsel for Corporal B.L. Harris