Courts Martial

Citation: R. v. Master Corporal J.R.F. Bourgouin, 2005 CM 18

Docket: S200518

STANDING COURT MARTIAL

CANADA

QUEBEC

AREA SUPPORT UNIT VALCARTIER

Date: May 30, 2005

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

HER MAJESTY THE QUEEN

v.

MASTER CORPORAL J.R.F. BOURGOUIN

(Accused)

SENTENCE

(Rendered orally)

OFFICIAL ENGLISH TRANSLATION

[1]                    Master Corporal Bourgouin, the Court has accepted and entered your admission of guilt on the third count, and now finds you guilty on that third count.

[2]                    In R. v. Généreux, [1992] 1 S.C.R. 259, the Supreme Court of Canada held that to maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently.

[3]                    The Supreme Court said that in the particular context of military discipline, breaches of discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian had engaged in such conduct. But even if those words are elevated to the level of principles, the instructions given by the Supreme Court do not mean that a military court may impose a sentence composed of a punishment or punishments that would be beyond what is required in the circumstances of a case. In other words, any sentence imposed by a court, whether civilian or military, must always represent the minimum action required.

[4]                    For the purposes of sentencing, the Court has had regard to, among other factors, all of the circumstances surrounding the commission of the offence of which you have admitted your guilt, as set out in the summary of circumstances, the truth of which you have formally acknowledged. The Court has also had regard to all of the evidence presented during the sentencing portion of the hearing, that is, the documentary evidence set out in Exhibits 3 to 6. The Court has examined that evidence having regard to the principles that are applicable to sentencing and the mandatory requirements that must be met in order to ensure that a disciplined, operational and effective armed force is maintained. The Court also had regard to counsel’s argument and the case law to which they referred.

[5]                    In imposing an appropriate sentence on an accused for the wrongful acts he has committed and in relation to the offences of which he is guilty, there are certain objectives, having regard to the principles applicable to sentencing, although they vary slightly from one case to another. The weight assigned to them must be adapted not only to the circumstances of the case but also to the individual offender. In order to contribute to one of the essential objectives of military discipline, the maintenance of a professional, disciplined, operational and effective armed force in a free and democratic society, those objectives 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, consistency in sentencing; and

last, the Court will take into account aggravating and mitigating circumstances relating to the the circumstances of a case and also relating to the offender’s situation.

[6]                    In this case, the parties have agreed to recommend a sentence that will stress individual deterrence. Prosecution counsel also submitted, to a lesser extent, that protection of the public will be achieved by a sentence that stresses punishment and denunciation of the offender. The Court accepts that proposal and believes that the circumstances of this case also support a sentence that will but some emphasis on general deterrence.

[7]                    In considering what sentence would be appropriate, the Court has taken the following aggravating and mitigating factors into consideration. I will begin with the aggravating factors. The Court considers the following factors to be aggravating:

First, the nature of the offence and the sentence provided for by Parliament. Obviously, in the case of the third count, the offence of drunkenness under section 97 of the National Defence Act is punishable in the circumstances of this case by a maximum of imprisonment for 90 days.

Second, the facts set out in the summary of circumstances that you have acknowledged to be true. It must first be noted that a court sentences an offender for the offences of which he has been found guilty or for which he has admitted guilt, as in this case. The Court neither may nor must sentence an accused for offences with which he may have been charged or convicted or with which he may have been charged and had the charge withdrawn by the prosecution. The circumstances of this case indicate that during the party you attended on May 28, 2004, you consumed alcohol excessively to the point that your general conduct was reprehensible. In fact, during the presentations that took place after the dinner, you seemed to be in a state of advanced intoxication. That was when you made inappropriate, vulgar and sarcastic comments in a loud voice. It also seems that the later the evening got, the louder your voice was. The evidence before this Court is that you became aggressive toward your superior officers and certain other people who were trying to persuade you not to drive your vehicle because you were drunk. It seems that your drunkenness made you unable to properly understand that those people were trying to help you, not hurt you. It should be noted that the military police even had you take a number of tests using an approved device during the evening and formed the opinion that you were not capable of driving your vehicle. Once again, you continued to be aggressive and ignore the people who were trying to help you not to put your life and the lives of others in danger by driving your vehicle. However, the Court cannot make any inference from the evidence presented to it regarding what your blood alcohol level may have been when you drove your vehicle home, or whether you did or may have put other people’s safety in danger when you drove the vehicle. These are very attractive conclusions, but the Court agrees with your counsel that it does not have the evidence that is needed in order to accept such conclusions as facts proved in court, based on the summary of circumstances read by counsel for the prosecution. The Court is satisfied, however, that you drove your vehicle despite the concerns that had been expressed to you and that you ignored all of the alternatives that you were offered for getting home, although you have admitted today in this room that you were drunk on the evening of May 28, 2004. As an error of judgment, absent evidence of a crime and a charge, if one was laid, it was a very serious error.

Third, the fact that you are a mature man and a non-commissioned officer who had over 15 years’ experience in the regular force at the time the offences were committed. The Court is completely satisfied that you should have exhibited greater maturity and better judgment. It seems that you have a promotion waiting for you, but I also note from the comments made by prosecution counsel that the sentence that this court is going to impose could have an effect on that promotion. It would be a mistake to look only at the sentence, in that the circumstances of the case are much more relevant in a matter like this one because they can be used to assess factors like the judgment, maturity and respect exhibited by people who are suitable for promotion. On that point, the Court would simply point out that the sentence it is preparing to impose on you should not be an indication of what should become of your future promotion. It is up to the appropriate authorities to determine the impact that the facts surrounding this case should have on any promotion.

The Court accepts the following factors as mitigating factors:

First, your admission of guilt before this Court. By pleading guilty, you avoided multiple witnesses having to be called and a lengthy trial held.

Second, your exemplary service. Until this, you have been a soldier who has demonstrated exemplary courage and dedication and your conduct has been irreproachable. The Court believes that your conduct was an unfortunate error of judgment, although a very serious one.

[8]                    For these reasons, the Court sentences you to a fine in the amount of $900, payable in three equal monthly instalments of $300.

[9]                    Take Master Corporal Bourgouin out.

[10]                  The proceedings of this standing court martial in relation to

Master Corporal Bourgouin are now concluded. Thank you.

                                                                    LIEUTENANT-COLONEL M. DUTIL, M.J.

Counsel:

Major G. Roy, Regional Military Prosecutor, Eastern Region

Counsel for Her Majesty the Queen

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

Counsel for Master Corporal J.R.F. Bourgouin