Cour martiale
Informations sur la décision
Résumé :
Date de l’ouverture du procès : 3 mars 2016
Endroit : 17e Escadre Winnipeg, Centre d’entraînement et de formation, 135 rue West, Winnipeg (MB)
Chefs d’accusation :
• Chef d’accusation 1 : Art. 83 LDN, a désobéi à un ordre légitime d’un supérieur.
• Chefs d’accusation, 2, 3, 4, 5, 6, 7 : Art. 117f) LDN, a commis un acte de caractère frauduleux non expressément visé aux articles 73 à 128 de la Loi sur la défense nationale.
• Chefs d’accusation 8, 9 : Art. 125 LDN, a fait volontairement une fausse inscription dans un document officiel établit par lui.
• Chefs d’accusation 10, 11, 12, 13 : Art. 112 LDN, s’est servi, sans autorisation, d’un véhicule des Forces canadiennes.
Résultats :
• VERDICTS : Chefs d’accusation 1, 3, 4, 5, 6, 7, 11, 12, 13 : Retirés. Chefs d’accusation : 2, 8, 9, 10 : Coupable.
• SENTENCE : Un blâme et une amende au montant de 1000$.
Contenu de la décision
Attention : ce document est disponible en anglais seulement.
COURT MARTIAL Citation: R. v. Harding, 2016 CM 1007 Date: 20160304 Docket: 201561 Standing Court Martial 17 Wing, Canadian Forces Base Winnipeg Winnipeg, Manitoba, Canada Between: Her Majesty the Queen - and - Sergeant C.L. Harding, Offender Before: Colonel M. Dutil, CMJ REASONS FOR SENTENCE (Orally) [1] Sergeant Harding admitted his guilt on one count of a fraudulent nature under section 117(f); two counts for having willfully made a false entry in a document made by him for official purposes under section 125; and one count for having used vehicles of the Canadian Armed Forces for an unauthorized purpose under section 112(a) of the National Defence Act (NDA). The offender admitted his guilt to the charges under section 117(f) and section 112(a) of the Act on facts that differed materially from the facts alleged in the statement of particulars in the charge sheet. The purpose of these pleas of guilty was to capture the periods covered for similar charges. Consequently, the prosecution withdrew five charges under section 117(f) and three charges under section 112(a) of the Act. The charges read as follows, with their modified particulars in parentheses: "Second Charge AN ACT OF A FRAUDULENT NATURE NOT s. 117(f) NDA PARTICULARLY SPECIFIED IN SECTION 73 TO 128 OF THE NATIONAL DEFENCE ACT
Page 2 Particulars: In that he, (between 23 September 2014 and 18 November 2014) at 17 Wing, CFB Winnipeg, Winnipeg, Manitoba, with intent to defraud, used a Department of National Defence Automotive Resources International (ARI) card to obtain fuel for his personal use in the amount of (273) litres. Eighth Charge WILFULLY MADE A FALSE ENTRY IN A s. 125 NDA DOCUMENT MADE BY HIM THAT WAS REQUIRED FOR OFFICIAL PURPOSES Particulars: In that he, on or about 10 October 2014, at 17 Wing, CFB Winnipeg, Winnipeg, Manitoba, made a false entry on a DND 645 Requisition for Mobile Support Equipment indicating that the vehicle he was requisitioning would be used for his duty travel, while knowing that the vehicle would not be so used. Ninth Charge WILFULLY MADE A FALSE ENTRY IN A s. 125 NDA DOCUMENT MADE BY HIM THAT WAS REQUIRED FOR OFFICIAL PURPOSES Particulars: In that he, on or about 5 November 2014, at 17 Wing, CFB Winnipeg, Winnipeg, Manitoba, made a false entry on a DND 645 Requisition for Mobile Support Equipment indicating that the vehicle he was requisitioning would be used for his duty travel, while knowing that the vehicle would not be so used. Tenth Charge USED A VEHICLE OF THE CANADIAN s. 112(a) NDA FORCES FOR AN UNAUTHORIZED PURPOSE Particulars: In that he, between 22 September 2014 and (14 November 2014), at CFB Winnipeg and at other places in Manitoba, without authority, used (vehicles) of the Canadian Forces for an unauthorized purpose." [2] The facts surrounding the commission of the offences are found in the statement of circumstances as well as an agreed statement of facts that were made exhibits, see Exhibits 7 and 10. In a nutshell, they reveal that Sergeant Harding enrolled in the Canadian Armed Forces on 31 August 1997. He enrolled as an infantryman. He joined the 2nd Battalion of Princess Patricia's Canadian Light Infantry in 1998. He completed his Primary Leadership Qualification Module 5 on 2 November 2004 and Primary Leadership Qualification Infantry on 28 June 2005. He was posted to the 17 Wing Logistics and Engineering Branch at Canadian Forces Base Winnipeg as the Operations and Training Sergeant in July 2014. On 14 November 2014, a colleague of Sergeant Harding at the 17 Wing Logistics and Engineering Branch received a call from Corporal Whittaker at Mobile Support Equipment (MSE) Dispatch requesting that Sergeant
Page 3 Harding's vehicle be returned. Sergeant Hibbert was not aware of a vehicle being used by Sergeant Harding for duty purposes and requested that Cpl Whittaker provide the DND 645 forms that had been used to requisition the vehicle. On receiving the requisition forms, Sergeant Hibbert suspected that the stamp and signature of Chief Warrant Officer Boudreault were not authentic. Following a brief informal unit investigation, the matter was reported to the military police. [3] Sergeant Harding voluntarily attended for an interview with the military police at 23 MP Flight on 12 December 2014. He declined the right to counsel and acknowledged a non-specific and, also, a supplementary caution. He said that he lived at the time in Traverse Bay, Manitoba, which is on Lake Winnipeg, 112 km north-northwest of the city of Winnipeg. Sergeant Harding said that he had five children and that he was separated from his wife. His vehicle had been repossessed because of missed payments. He admitted to using a DND vehicle for personal use, specifically to transport himself to and from home, to personal appointments, and to run errands in Winnipeg and Traverse Bay. Sergeant Harding initially requested and obtained a vehicle without completing a DND 645 Requisition for Mobile Support Equipment. When MSE Dispatch requested a DND 645, Sergeant Harding created a stamp with Chief Warrant Officer Boudreault's name and signed as Chief Warrant Officer Boudreault on requisitions dated 10 October 2014 and 5 November 2014. Sergeant Harding listed the duties to be performed for the purposes of both forms as "Travel to other units in the 17 Wing Catchment area to attend meetings required for coordination of training. As well, travel to training activities to oversee safety in quality of training." On the basis of the false DND 645 requisitions, Sergeant Harding obtained the use of Canadian Armed Forces vehicle number 73755 from 22 September 2014. He used vehicle number 12738 from 29 September to 7 October 2014. He used vehicle number 69652 from 7 October to 10 November 2014. Sergeant Harding admitted in his statement to the military police that he fueled the Canadian Armed Forces vehicle from personal funds, but also using a DND ARI gas card that he received from MSE Dispatch. He obtained gasoline for his own use in the amount of 273 liters. Sergeant Harding told the military police that he was never authorized in 2014 by any member of his chain of command to use a DND vehicle or to use a DND fuel card. [4] In December of 2014, Sergeant Hibbert saw Sergeant Harding at the All Ranks Mess at around 1745 hours in civilian clothes and apparently freshly showered, as his hair was wet. As Sergeant Harding's home was outside the city, Sergeant Hibbert became suspicious that Sergeant Harding was staying in a vacant barrack block that was under renovation on base. On the morning of 12 December, Sergeant Hibbert saw Sergeant Harding's vehicle parked outside that barrack block, building 63. Sergeant Hibbert reported the issue to his supervisor, Chief Warrant Officer Boudreault, who was also Sergeant Harding's supervisor. Chief Warrant Officer Boudreault directed Sergeant Hibbert to search for Sergeant Harding in building 63. On doing so, Sergeant Hibbert found Sergeant Harding in room 211 in that building. This information is relevant because during the police interview, Sergeant Harding admitted staying in room 211 of building 63 from February of 2014 until he was caught on 12 December 2014. He stayed there a minimum of two times per week. He did not pay for the room.
Page 4 He knew the building was left open as there was construction in the building. He would wait until the construction workers had left for the day and leave in the morning before they returned. He had originally been given a key for the room on an emergency basis. [5] Finally, the agreed statement of facts indicates that Sergeant Harding was diagnosed with major depression by a psychiatrist at the 17 Wing Medical Clinic on 2 December 2014. The psychiatrist is aware of the charges, facts on the case and the dates of the commission of these offences. It is agreed that his expert opinion would state that there is a link between Sergeant Harding's depression and the offences. According to his expertise, in terms of symptoms, people suffering from major depression don't care about anything, including consequences or rules. They are withdrawn from society and disconnected from people, disconnected from the world. It is referred to as "social isolation". Such persons do not have a sense of obligation, duty or a sense of guidelines. [6] Sergeant Harding also testified during the sentencing hearing. He expressed sincere and genuine remorse and responsibility for his actions. The offender explained how he felt at the time of the offences as he was going through a difficult separation and how financially distraught he was, being the sole income provider for his family. He said that he did not sleep for three years between 2011 and 2014 and was totally physically, mentally and financially exhausted. He felt desperate. Sergeant Harding explained that four of his five children suffer from autism, two of whom require full-time care, 24 hours a day, 7 days a week. Sergeant Harding testified that his financial situation was so catastrophic at the time, that he was overwhelmed and saw no way out of his situation. Squatting in the barracks, using DND vehicles and fraudulently obtaining fuel allowed him, according to this testimony, to put food on the table for his family during that sad period. He also told the court about his current situation. His children are in the custody of their mother, two living part-time in a special home because of their severe autism. Sergeant Harding has two full-time jobs: one, in the Canadian Armed Forces, Regular Force, at 17 Wing as the Wing Force Protection Coordinator; in addition, he also works full-time during the evenings and weekends as a security officer at Garda World. It is only with these two salaries combined that he can pay his debts and take care of his family. He has recently moved into the married quarters. It is an understatement to say that his financial situation is precarious and it could exacerbate his level of stress and anxiety at a time where he does everything possible to ensure the well-being of his children. [7] Counsel for the prosecution and defence made a joint submission yesterday that a fit and proper sentence in this case should be composed of a severe reprimand and a fine of $1,000. The court raised with counsel the financial situation of the offender and questioned his ability to pay a fine in the circumstances and offered counsel for the defence to provide the court with additional information. The court also asked counsel to reassess that joint submission if they felt it was appropriate. This morning, counsel for the defence informed the court that the offender has now an additional monthly expense in excess of $800 to cover his married quarters. Counsel for the defence also informed the court that, in light of this new information and discussion with the offender, he could no longer agree with a joint submission on sentence.
Page 5 [8] The prosecution recommends that a fit and proper sentence remains a severe reprimand and a fine of $1,000 in the particular circumstances. However, the prosecution raised the possibility that a punishment of forfeiture of seniority for a period of three years, although higher in the scale of punishments, would still achieve the need for general deterrence and the denunciation in the circumstances as it would not impact on the financial situation of the offender. [9] Counsel for the defence recommends that the sentence should consist of a severe reprimand. He submits that the predominant objective of sentencing in this case is the rehabilitation of the offender, if not the only one. Counsel for the defence suggests that the court should impose such a sentence because it would be justified in the compelling circumstances demonstrated by the offender, even if this could fall outside the range of sentences imposed for similar offences. [10] It remains that the fundamental purpose of sentencing in a court martial is to ensure the respect for the law and maintenance of discipline. However, the law does not allow a military court to impose a sentence that would be beyond what is required in the circumstances of the case. In other words, any sentence imposed by a court must be adapted to the individual offender and constitute the minimum necessary intervention since moderation is the bedrock principle of the modern theory of sentencing in Canada. [11] When imposing a punishment, the court shall consider one or more of the following objectives and principles, including those enunciated in subsections 718.1 and 718.2 of the Criminal Code. The objectives aim: (a) to protect the public, which includes the Canadian Armed Forces; (b) to denounce unlawful conduct; (c) to deter the offender and other persons from committing the same offences; (d) to separate offenders from society where necessary; and (e) to rehabilitate and reform offenders. [12] Those objectives must take into consideration the following principles: (a) a sentence must be proportionate to the gravity of the offence; (b) a sentence must be proportionate to the responsibility and previous character of the offender; (c) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
Page 6 (d) an offender should not be deprived of liberty, if applicable in the circumstances if less restrictive sanctions may be appropriate in the circumstances. In short, the court should impose a sentence of imprisonment or detention only as the last resort as it was established by the Court Martial Appeal Court of Canada and the Supreme Court of Canada decisions; and (e) all sentences should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [13] Given the very nature of the offences for which the offender admitted his guilt, I am of the opinion that sentencing in this case should focus on the objectives of denunciation and general deterrence. Rehabilitation is important but the offences were committed over an extensive period of time and involved an important breach of trust for a long-serving member with significant rank and experience in that rank. It is important to remember that the principle of general deterrence means that the sentence should deter not only the offender from reoffending, but also to deter others in similar situations from engaging in the same prohibited conduct. [14] As d'Auteuil MJ mentioned in R. v. Maillet, 2013 CM 3034, given the size of the Canadian Armed Forces as an organization, it relies in large part on the integrity and honesty of its members to ensure sound management of the funds entrusted to it from the public purse. The court does not consider that the case of Sergeant Harding is so compelling to detract from the long and constant jurisprudence in our court and civilian criminal courts that offences involving fraudulent activities and breach of trust, especially from employers, should promote the need for general deterrence and denunciation. Rehabilitation can, in many cases, be predominant as well, but it should not exceed the main objectives. The remarks of Letourneau JA in R. v. St-Jean, (2000) CMAC 429 at paragraph 22 are still applicable today: After a review of the sentence imposed, the principles applicable and the jurisprudence of this Court, I cannot say that the sentencing President erred or acted unreasonably when he asserted the need to emphasize deterrence. In a large and complex public organization such as the Canadian Forces which possesses a very substantial budget, manages an enormous quantity of material and Crown assets and operates a multiplicity of diversified programs, the management must inevitably rely upon the assistance and integrity of its employees. No control system, however efficient it may be, can be a valid substitute for the integrity of the staff in which the management puts its faith and confidence. A breach of that faith by way of fraud is often very difficult to detect and costly to investigate. It undermines public respect for the institution and results in losses of public funds. Military offenders convicted of fraud, and other military personnel who might be tempted to imitate them, should know that they expose themselves to a sanction that will unequivocally denounce their behaviour and their abuse of the faith and confidence vested in them by their employer as well as the public and that will discourage them from embarking upon this kind of conduct. Deterrence in such cases does not necessarily entail imprisonment, but it does not per se rule out that possibility even for a first offender. There is no hard and fast rule in this Court that a fraud committed by a member of the
Page 7 Armed Forces against his employer requires a mandatory jail term or cannot automatically deserve imprisonment. (footnote omitted) Every case depends on its facts and circumstances. [15] In addition to the objective seriousness of the offences, the court considers the following aggravating factors: (a) the nature of the fraudulent act and the misuse of the vehicle over a significant period of time; namely, two months; (b) the breach of trust in the misuse of public property and the fraudulent use of credit cards to obtain fuel for a personal benefit; (c) the degree of premeditation involved during the commission of the offences which took place over a two month period. These acts were not isolated; (d) the rank and experience of the offender. Despite his severe depression and his good intentions to ensure the well-being of his family in misusing the Crown assets, Sergeant Harding knew that his actions were wrong; and (e) the personal gain or benefit resulting from the fraudulent acts and the misuse of DND vehicles. [16] I also considered the following mitigating factors: (a) Your pleas of guilty at the first opportunity and the fact that the offender fully cooperated with the authorities as soon as he met with the military police. In light of his testimony and public apology, I consider these elements as a genuine expression of remorse and a full acceptance of responsibility. (b) The fact that the offender suffered from major depression and was going through extreme personal and financial difficulties at the time of the commission of the offences. (c) His current family and financial situation today: Sergeant Harding is practically the sole provider for the financial support of his five children, two of whom require extreme care. His debt ratio is alarming. He occupies a second full-time job to improve his situation and to support his children the best he can. According to his testimony, his car payments of approximately $800 a month will cease in six months. This should be most welcome. (d) His distinguished career in the Canadian Armed Forces; he has served for almost 20 years and has been deployed and decorated numerous
Page 8 times for his efforts in Bosnia and Afghanistan for which he received the medal of military valour. (e) The offender's fragile mental health. Despite there being no evidence of Sergeant Harding's mental health today, it remains that a major depression existed and contributed to the commission of the offences during the relevant period. This trial takes place less than two months after this diagnosis and the Court does not want to unduly impair his rehabilitation. [17] It is the Court's opinion that imposing a punishment of a severe reprimand would only benefit the offender and evacuate the need for general deterrence and denunciation that ought to be emphasized for these types of offences. I consider that the prosecution's recommendation is the minimal sentence in the particular circumstances, including the personal, family and financial situations of Sergeant Harding at the time of the commission of the offences and his personal, family and financial situations today. The personal circumstances of the offender are not sufficient to decrease the amount of the fine to be imposed but relief must be provided in imposing terms of payment that will help him in his rehabilitation. FOR THESE REASONS, THE COURT: [18] FINDS you guilty of one count of an act of a fraudulent nature under section 117(f); two counts for having wilfully made a false entry in a document made by him for official purposes under section 125; and, one count for having used a vehicle of the Canadian Armed Forces for an unauthorized purpose under section 112(a) of the NDA. [19] SENTENCES you to a severe reprimand and a fine of $1,000, payable in 20 equal monthly instalments of $50 beginning on 31 July 2016. Counsel: The Director of Military Prosecutions, as represented by Major E.J. Cottrill Lieutenant-Commander P. Desbiens, Defence Counsel Services, Counsel for Sergeant Harding
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