Courts Martial

Citation: R. v. Ex-Corporal B. Talbot, 2006 CM 26

Docket: S200626

STANDING COURT MARTIAL

CANADA

QUÉBEC

AREA SUPPORT UNIT VALCARTIER

Date: June 13, 2006

PRESIDING: LIEUTENANT-COLONEL M. DUTIL, M.J.

HER MAJESTY THE QUEEN

v.

EX-PRIVATE B. TALBOT

(Offender)

SENTENCE

(Delivered orally)

OFFICIAL ENGLISH TRANSLATION

[1]                    The Court has accepted and entered your guilty plea on the first count, desertion under section 88 of the National Defence Act, and finds you guilty on that first count.

[2]                    Counsel present made a joint sentencing submission to the Court.  Counsel recommended that the Court impose a sentence of imprisonment for 15 days and a fine of $1,000 payable in 10 equal payments.  Notwithstanding the joint submission, it must be clearly understood that the obligation to determine an appropriate sentence rests with the Court, which is entitled to reject the joint proposal made by counsel.  It is settled law, however, that the Court may reject it only for compelling reasons and it is not the intention of the Court to do so today.  Accordingly, the judge should accept the joint submission of counsel unless it finds it to be inappropriate or unreasonable, contrary to the public interest or likely to bring the administration of justice into disrepute, for example if it fell outside the range of sentences previously imposed for similar offences.  On the other hand, counsel are required to provide the judge with all of the facts on which the joint submission is based.

[3]                    For sentencing purposes, the Court has had regard, among other factors, to all of the circumstances surrounding the commission of the offence to which you have admitted your guilt, as set out in the summary of the circumstances, the truth of which you have formally acknowledged.  The Court has also had regard to the whole of the evidence presented during the sentencing phase of the trial.  The Court has examined the evidence having regard to the principles that are applicable to sentencing, including the objectives and principles set out in sections 718, 718.1 and 718.2 of the Criminal Code where they are not inconsistent with the mandatory requirements for maintaining a disciplined, operational and effective armed force or with the sentencing rules set out in the National Defence Act. The Court has also taken into consideration the submissions of counsel and the case law cited by them.

[4]                    In imposing an appropriate sentence on an accused for the wrongful acts he has committed and in relation to the offences he has committed, it is imperative that the sentence be the minimum action required, after analysis of the objectives having regard to the principles that are applicable to sentencing.  It must be noted that those objectives and principles will vary slightly from one case to another, but the weight assigned to each of them must be adapted to the circumstances of the case.  In order to contribute to one of the essential objectives of military discipline, the maintenance of a professional, disciplined, operational and effective armed force, those objectives and principles may be stated as follows:

First, protection of the public, which includes the Canadian Forces;

Second, punishment and denunciation of the offender;

Third, deterrence of the offender and anyone else from committing the same offences;

Fourth, separation of the offender from society, including members of the Canadian Forces, where appropriate;

Fifth, rehabilitation and reform of the offender;

Sixth, proportionality to the seriousness of the offences and the offender’s degree of responsibility;

Seventh, consistency in sentencing;

Eighth, the imposition of a custodial sentence only where the Court is satisfied that it is necessary as a last resort; and

Last, the Court will take into account aggravating circumstances relating to the offender’s situation and to the commission of the offences, and mitigating circumstances of the same nature.

While few cases have been decided that involve desertion, it seems that courts martial have imposed a custodial sentence in cases of absence without leave that may be somewhat comparable to a desertion case of the nature and extent of the desertion that is the subject of this court martial.  A custodial sentence is very often, as is the case here, the minimum sentence that will protect the public and preserve the integrity of the military system against the precipitous departure of its members in order to avoid the duty that rests on them as a result of their voluntary enrolment.  Incarceration stresses the principles of general deterrence and denunciation of the act charged, which are the primary objectives that should be at the forefront in that context.

[5]                    In considering what sentence would be appropriate, the Court has taken the following aggravating and mitigating factors into consideration.  I shall start with the factors that aggravate the sentence.  The Court considers the following factors to be aggravating:

First, the nature of the offence of desertion.  This is a very serious offence in the context of military discipline, regardless of whether it is a case for which life imprisonment or a maximum term of five years’ imprisonment may be imposed.

Second, the fact that you were well aware of what you were doing when you deserted and you knew what the consequences of deserting would be.

Third, the fact that you quite simply abdicated your responsibilities and the military duties that you undertook to perform when you voluntarily enrolled in the Canadian Forces.

[6]                    There are not very many mitigating factors.  The Court recognizes that you admitted your guilt and that you had no conduct sheet at the time the offence was committed.  The Court also recognizes that you are young and that some time has passed since the charges were laid against you.  Your counsel has pointed out that you wanted to make amends honourably by pleading guilty before this Court.  It must be acknowledged that your guilty plea is really part of an attempt to re-enrol in the Canadian Forces.  I will leave it for the recruiting authorities in the Canadian Forces to determine whether you are the kind of individual they are looking for to represent Canada here and abroad.

[7]                    Accordingly, the Court accepts the joint submission of counsel, which it considers to be the minimum sentence necessary for the protection of the public and the maintenance of discipline, and sentences you to imprisonment for 15 days and a fine of $1,000 payable in 10 equal payments.

[8]                    I would ask that prosecuting counsel provide defence counsel as soon as possible with complete instructions as to how the offender may go about paying the fine imposed by the Court, whether by postal money orders or certified cheques.

[9]                    Sentence is passed at 12:45 on June 13, 2006.

                                                                                               COLONEL M. DUTIL, M.J.

Counsel:

Major J. Caron, Regional Military Prosecutor, Eastern Region

Counsel for the prosecutor

Lieutenant-Commander J.C.P. Lévesque, Directorate of Defence Counsel Services

Counsel for Ex-Private B. Talbot