Courts Martial

Citation: R. v. Master Corporal R.P. Joseph, 2008 CM 4008

Docket: 200803

STANDING COURT MARTIAL

CANADA

CANADIAN FORCES BASE NORTH BAY

ONTARIO

Date: 19 June 2008

PRESIDING: LIEUTENANT-COLONEL J-G PERRON, M.J.

HER MAJESTY THE QUEEN

v.

MASTER CORPORAL R.P. JOSEPH

(Offender)

SENTENCE

(Rendered Orally)

[1]                    Master Corporal Joseph, the court having accepted and recorded your plea of guilty to charge No. 1, the court now finds you guilty of this charge. You have pled guilty to a charge laid under subsection 125(a) of the National Defence Act.

You may break off and sit with your counsel.

[2]                    The statement of circumstances, to which you formally admitted the facts as conclusive evidence of your guilt, provides this court with the circumstances surrounding the commission of this offence. Your testimony has also provided this court with further evidence. On 14 July 2005, you made a false entry in General Occurrence Report 2004-34670. The false entry was that an interview had been audio/video recorded and that the original had been logged into evidence. You had not logged that recording into evidence.

[3]                    The principles of sentencing which are common to both courts martial and civilian criminal trials in Canada have been expressed in various ways. Generally, they are founded on the need to protect the public and the public, of course, includes the Canadian Forces.

[4]                    The primary principles are the principles of deterrence that includes specific deterrence in the sense of deterrent effect on you personally as well as general deterrence; that is deterrence for others who might be tempted to commit similar offences. The principles also include the principle of denunciation of the conduct and last but not least the principle of reformation and rehabilitation of the offender.

[5]                    The court must determine if protection of the public would best be served by deterrence, rehabilitation, denunciation, or a combination of those factors.

[6]                    The court has also considered the guidance set out in sections 718 to 718.2 of the Criminal Code of Canada. Section 718 sets out the fundamental purpose of sentencing as a means of contributing to ensure respect for the law and the maintenance of a just and peaceful society by the imposition of just sanctions that have one or more of the following objectives: the denunciation of unlawful conduct, deterring the offender and other persons from committing offences, separating the offender from society where necessary, assisting in rehabilitating offenders, providing reparations for harm done to victims or to the community and the promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.

[7]                    The court is also required, in imposing a sentence, to follow the directions set out in article 112.48 of the Queen's Regulations and Orders which obliges it in determining a sentence to take into account any indirect consequences of the finding or of the sentence and impose a sentence commensurate with the gravity of the offence and the previous character of the offender.

[8]                    Usually, the court must also give consideration to a fact that sentences of offenders who commit similar offences in similar circumstances should not be disproportionately different. I have not been able to accomplish this exercise of comparison since I was not provided with any case law by either counsel.

[9]                    The ultimate aim of sentencing in the court martial process is the restoration of discipline in the offender and in military society. The court must impose a sentence that should be the minimum necessary sentence to maintain discipline.

[10]                  The prosecution has argued that the principles of general deterrence and of denunciation are the most important principles in this specific case and she has recommended a sentence of a severe reprimand and a fine in the range of $1000 to $3000. Your defence counsel has argued that the specific circumstances of this case, especially the lengthy delay between the date of the offence and the date of the court martial, do not support the assertion that the principle of general deterrence applies in this case. Your counsel has argued that the principles of specific deterrence and denunciation apply in this case and that a sentence of a reprimand and a fine in the amount of $500 would represent the appropriate sentence and that it would also reflect on and assist your rehabilitation.

[11]                  I will firstly address the aggravating factors in this case. You were practically 34 years old at the time of the offence and had the benefit of approximately 14 years of service in the Canadian Forces. You had been appointed Master Corporal approximately two weeks before the offence. You had been provided with numerous military police and investigative technique courses. Basically, you had been in the Canadian Forces long enough and you had all the necessary experience and training to know what was expected of you when completing your investigation report.

[12]                  You are a member of the military police. You were a peace officer at the time of the offence. As such, much power and authority were vested in you. But with such great authority also come great expectations. Errors such as the one you committed on 14 July 2005 cannot be tolerated or condoned because they may have serious effects on the lives of people. The court was not provided with any evidence that would demonstrate that the false entry did in fact lead to such consequences, that is to say the court was not informed if charges were laid as a result of the investigation you were completing or of any other consequences. Although one would assume that the Prosecution would have presented such evidence as aggravating evidence, I will not make any assumptions whether charges were laid or were not laid.; I will treat this absence of evidence on that issue simply as a neutral factor. The court would have adopted a quite different view on that issue had there been evidence as to the effects of this false entry.

[13]                  I will now deal with the evidence in mitigation of sentence. You have pled guilty. Canadian jurisprudence generally considers a plea of guilty as a tangible sign that the offender feels remorse for his or her actions and that he or she takes responsibility for his or her illegal actions and the harm done as a consequence of these actions.

[14]                  Therefore, a plea of guilty will usually be considered as a mitigating factor. This approach is generally not seen as a contradiction of the right to silence and to the right to have the Crown prove beyond a reasonable doubt the charge laid against the accused but is seen as a means for the courts to impose a more lenient sentence because the plea of guilty usually means that the accused wants to take responsibility for his or her unlawful actions. Also, witnesses do not have to testify and a guilty plea greatly reduces the costs associated with the judicial proceeding.

[15]                  You also indicated to your chain of command in an email that you had not logged the recording into evidence. As such, this also demonstrates some cooperation with the authorities when discrepancies were found during the Military Police Complaint Commission investigation.

[16]                  You do have a conduct sheet but this offence of absence without leave found on the conduct sheet occurred on 19 February 2007; therefore, you are considered a first time offender for the purposes of the sentencing phase of this court martial.

[17]                  You described a very difficult period in your life at the time of the offence. Your relationship with your spouse was in the initial stage of a separation, you were experiencing the beginning of a depression and you were the only person left in the investigation section. Although these factors do not excuse your actions they do help to understand your personal circumstances at the time of the offence.

[18]                  While the evidence does demonstrate that you did not make this false entry to gain any advantage, to help someone or to hide another illegal act, you did commit a service offence. This service offence was committed while you were executing your duties as a military police investigator. Members of the Canadian Forces must be confident that members of the military police will perform their duties in an impartial and correct manner if the respect for the rule of law is to be maintained within the Canadian Forces. The knowledge that a false entry was made in an investigation report would surely erode the trust and confidence shown by the members of the Canadian Forces to the members of the military police.

[19]                  Members of the military police, like their civilian counterparts, are held to high standards and they must exert the necessary efforts to attain an maintain these lofty standards.

Master Corporal Joseph, please, stand up.

[20]                  I believe the principles of general deterrence and denunciation rightly apply in this case. Although I agree with your defence counsel that the delay of almost three years since the date of the offence until the date of trial might have an effect of diminishing the impact of general deterrence in most cases, I do note that the initial portion of the delay was caused by the simple fact that the discrepancy in your investigation report that lead to the police investigation of this offence was only discovered in the Fall of 2006 because of the Military Police Complaint Commission investigation. I believe that general deterrence does apply in this case, since other members of the military police community will surely become aware of this case and of its consequences. Also, denunciation of this type of offence, making a false entry in an investigation report, is an important sentencing principle in order to ensure that the military police keeps the trust of the military community, of the law enforcement community and of all Canadians.

[21]                  Having said this, I have also taken into consideration your specific personal circumstances at the time of the offence as well as your conduct after the offence. You were under a great deal of pressure because of your emotional and psychological problems. I believe the sentence I am about to impose is the minimum necessary sentence to maintain discipline while taking into account the subjective gravity of the offence and the previous character of the offender.

[22]                  Master Corporal Joseph, I sentence you to a reprimand and a fine in the amount of $1200. The fine shall be paid in monthly instalments of $100 commencing on the first day of July 2008. If you are released from the Canadian Forces, the entire amount shall become due and payable the day before your effective date of release from the Canadian Forces.

                                                               LIEUTENANT-COLONEL J-G PERRON, M.J.

Counsel:

Major S.A. MacLeod, Director of Military Prosecutions Ottawa

Counsel for Her Majesty The Queen

Capitain B.L.J. Tremblay, Directorate of Defence Counsel Services Ottawa

Counsel for Master Corporal R.P. Joseph