Courts Martial

Citation: R. v. Sergeant T.M. McLaren, 2009 CM 3015

Docket: 200923

STANDING COURT MARTIAL

CANADA

NOVA SCOTIA

CAMP ALDERSHOT

Date: 4 September 2009

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

HER MAJESTY THE QUEEN

v.

SERGEANT T.M. MCLAREN

(Offender)

SENTENCE

(Rendered Orally)

[1]        Sergeant McLaren, having accepted and recorded your plea of guilty in respect

of the second charge on the charge sheet, the court finds you now guilty of that charge. 

[2]        Consequently, considering that the prosecutor informed the court that he concurs in the acceptance of the plea of guilty to this alternative charge, that is less serious than the first charge on the charge sheet, and you have pleaded not guilty to the more serious alternative charge, then the court directs that the proceedings be stayed on the first charge.

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

[4]        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.

[5]        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.

[6]        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 offence and the previous character of the offender," as stated at QR&O article 112.48 (2)(b).

[7]        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 the reduc­tion in rank to the rank of corporal.  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 CMAC 1 quoting the decision of R. v. Sinclair at paragraph 17 that:

... [t]he 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.

[8]        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 in 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 interests 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 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 representation by counsel, the admis­sions and the documentation introduced. 

[9]        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 on the  principle 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 re-offending, but also others in similar situations from engaging, for whatever reasons, in the same prohibited conduct.

[10]      Here, the court is dealing with a pure military offence for being absented without leave from your unit, which goes to the heart of military discipline.  This type of offence is about the application of the principles of responsibility and integrity.  For a soldier, as you were at the time of the offence, being trustworthy and reliable at all times is more then essential for any mission in an armed force, whatever is the function or the role you have to perform.  However, the court will impose what it considers to be the necessary minimum punishment in the circumstances. 

[11]      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 90 of the National Defence Act for being absent without leave.  This offence is punishable by imprisonment for a term for less then two years or to less punishment.

[12]      About the subjective seriousness of the offence, the court considered three things as aggravating factors:

First, your rank and experience.  At the time of the offence, you had 34 years of experience in the Canadian Forces, spent in various locations and conditions.  Also, you were wearing the rank of sergeant for about two years and have occupied various leadership positions throughout your career.  You clearly knew you could not leave when you wanted, but you did it, despite your knowledge and experience on this specific matter.

Second, you decided that you will serve yourself before anything else without paying attention to the consequence of your decision.  You let your unit deal with the impact of your absence, without a regret, at the time; not paying attention to the additional workload that it will put on your colleagues and your unit.

Finally, the length of your absence disclosed a clear recklessness attitude and lack of care for the people and the organization, such as the Canadian Forces, you left behind.  You might have a grievance to raise or good reasons to complain, but leaving the place of your duty on your own, without warning to anybody, does not constitute an appropriate way to do things, being in the Reserves or in the Regular Force.

[13]      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 genuine sign of remorse and that you are very sincere in your pursuit of staying a valid asset to the Canadian commu­nity; it disclosed the fact that you are taking full responsibility for what you did.  The fact that you indicated early in the disciplinary process your intent to do so, reflected also, such intent.  

The fact that it is an isolated incident and that your long record of service does not disclose any disciplinary incidents. 

The fact that you did not have a conduct sheet or criminal record related to similar offences, and that fact that you have 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.

[14]      In consequence, the court will accept the joint submission made by counsel to sentence you to the reduction in rank to the rank of corporal considering that it is not contrary to the public interest and would not bring the administration of justice into disrepute.

[15]      Sergeant McLaren, please stand up.  The court sentences you to the reduction in rank to the rank of corporal.  Please be seated.

[16]      The proceedings of this Standing Court Martial in respect of Corporal McLaren are terminated.

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

COUNSEL

Major J.J. Samson, Canadian Military Prosecution Service

Counsel for Her Majesty the Queen

Lieutenant(N) P.D. Desbiens, Directorate of Defence Counsel Services

Counsel for Sergeant T.M. McLaren