Courts Martial
Decision Information
Summary:
CMAC 480 - Appeal Dismissed
Date of commencement of the trial: 9 March 2004.
Location: 6080 Young Street, 5th floor, courtroom, Halifax, NS.
Charges:
• Charge 1 (alternate to charge 2): Para. 75(g) NDA, improperly occasioned false alarms.
• Charge 2 (alternate to charge 1): S. 129 NDA, conduct to the prejudice of good order and discipline.
Results:
• FINDING: Charge 1: Guilty. Charge 2: A stay of proceedings.
• SENTENCE: A severe reprimand and a fine in the amount of $10,000.
Decision Content
Page 1 of 4 Citation: R. v. Officer Cadet J.A. McNulty,2004CM05 Docket: S200405 STANDING COURT MARTIAL CANADA NOVA SCOTIA CANADIAN FORCES BASE HALIFAX Date: 12 March 2004 PRESIDING: LIEUTENANT-COLONEL M. DUTIL, M.J. HER MAJESTY THE QUEEN v. OFFICER CADET J.A. MCNULTY (Accused) SENTENCE (Rendered verbally) [1] Officer Cadet McNulty, the purpose of a separate and system of military tribunals is to allow the Armed Forces to deal with matters that pertain directly to the discipline, efficiency, and morale of the military. The Supreme Court of Canada has recognized that breaches of military discipline must be dealt with speedily, and frequently punished more severely than would be the case of a civilian engaged in similar conduct. However, the punishment imposed by any tribunal, military or civilian, should constitute the minimum necessary intervention that is adequate in the particular circumstances. [2] In determining sentence, the court has considered the circumstances surrounding the commission of the offence as revealed by the evidence during the trial, the documentary evidence provided to the court during the sentencing hearing, as well as the testimony of yourself and that of Mrs Jennifer Lynn MacDonald. The court also considered the representations made by counsel and the applicable principles of sentencing. [3] The principles to be used in considering what is an appropriate sentence relate, normally, to the following: firstly, the protection of the public, and that public included the interests of the Canadian Forces; secondly, the punishment or the denunciation of the offender; thirdly, the deterrent effect of the punishment, not only on the
Page 2 of 4 offender himself, but also upon others who might be tempted to commit similar offences; and fourthly, the reformation and rehabilitation of the offender. [4] The prime principle is the protection of the public, including the Canadian Forces, and the court must determine if that protection would be best achieved by deterrence, rehabilitation, or punishment. And how much emphasis would be put on one or more of theses principles will vary depending of the circumstances of each case. And in some cases the dominant principle, if not the only principle, will be deterrence, either general or specific or both. In other cases, the emphasis will be put on the offender's rehabilitation and reformation, for example. [5] In this case, the prosecution recommends that the protection of the public should be ensured in this case, by a sentence that will emphasize both general deterrence and denunciation. These factors are certainly extremely important and relevant in a case such as this one which had a broad impact as disclosed by the evidence at trial. The court is, however, satisfied that specific deterrence is not required here. The likelihood that you commit these acts in the future are unlikely, or at least there is no evidence before this court that could support this view. [6] In arriving at what the court considers a fair and appropriate sentence, the court has considered the following factors: The first one, the objective gravity of the offence for which you have been found guilty. It is punishable to a maximum of imprisonment for life. This is an extremely serious offence; Secondly, the court has considered the particular context of this case as described by the evidence heard during the trial. Although the circumstances are not the most serious, the consequences of your actions were important, as it would be in any scenario involving a bomb threat; Third, I considered your rank and equity in the Canadian Forces. You had just started as an officer cadet in the Reserve Cadet Instructor's Cadre, a position of trust with our youth which requires you to be a model for those put under your supervision. However, you were not new as a member of the Canadian Forces as you had served in the Regular Force from '93 to '96 as an Infantry person who knows all the importance of security and operations at any rank level. Your knowledge and experience of the military environment is a significant aggravating factor in your case; I've also considered the fact or the absence of previous convictions, whether military or civilian, in your case;
Page 3 of 4 I've considered, also, the fact that this incident occurred more than 14 months ago. And considering the evidence heard at trial, it is the court's view that this matter could have been dealt with more expeditiously; The court has considered, as well, your age, your financial, economic and social situation. [7] The court believes that you are a very bright and well-articulated young man whose bright future is likely to be compromised in the short term. The evidence heard in the sentencing procedure shows that you demonstrated a strong commitment to your community, especially during your recent years at the University of Alberta. The testimony of Mrs MacDonald satisfies the court that you are a good person who committed an extremely serious and unfortunate error in judgement. This sentence is likely to affect your future, at least your immediate future in the Canadian Forces, as well as your current efforts to join the Toronto Metro Police or the RCMP. But the court doesn't want to pass a sentence that would ruin your life and that would ruin the life of a young and bright individual, even if you should have known better; much, much better. It may be a mistake, but it is an extremely serious one, and to use an expression it was a criminal one. And that mistake had very serious consequences, especially in light of the events of September 11th, 2001. This is not a joke that compares to pulling a fire alarm at school in order to go outside, especially not committed by a man who was 28 or 29 years old at the time. One must bear in mind that your actions had a direct impact on Canadian Forces operations and its personnel. [8] The court disagrees with counsel for the prosecution that only a sentence composed of a punishment of imprisonment, accompanied or not by a punishment of dismissal, would serve the interests of justice. And I say that because, as there is no precedent dealing with such an offence before a court martial, at least none discovered by two able counsel, the court concludes that imprisonment is not necessary to achieve general deterrence here. Whether or not you have the capacity to pay a fine, for example, the only evidence that is before the court, or that the inference that the court can make, is that there is no evidence that you cannot pay the fine. [9] For all these reasons the court sentences you to a severe reprimand and a fine in the amount of $10,000. And should you be released from the Canadian Forces prior to the full payment of the fine, the unpaid balance will become due and payable, in full, prior to the effective date of release. March out Officer Cadet McNulty. [10] The proceedings of this court martial in respect of Officer Cadet McNulty are terminated.
Page 4 of 4 LIEUTENANT-COLONEL M. DUTIL, M.J. Counsel: Major R.F. Holman, Regional Military Prosecutions Atlantic Attorney for Her Majesty The Queen Captain D. Sinclair, Deputy Judge Advocate Petawawa Assistant Attorney for Her Majesty The Queen Major J.A.M. Côté, Directorate of Defence Counsel Services Attorney for Officer Cadet J.A. McNulty
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.