Cour martiale

 

COURT MARTIAL

 

Citation: R. v. Derival, 2018 CM 4009

 

Date: 20180508

Docket: 201760

 

Standing Court Martial

 

Canadian Forces Base Esquimalt

Victoria, British Columbia, Canada

 

Between:

 

Her Majesty the Queen

 

- and -

 

Leading Seaman K. Derival, Offender

 

Before: Commander J.B.M. Pelletier, M.J.

 

REASONS FOR SENTENCE

 

(Orally)

 

Introduction

 

[1]        Following a contested trial, Leading Seaman Derival was found guilty of one of the four counts he was facing, a charge under section 130 of the National Defence Act (NDA) for uttering a forged document contrary to subsection 368(1) of the Criminal Code.

 

[2]        Having heard the evidence and arguments of counsel in a sentencing hearing, I now need to impose an appropriate, fair and just sentence.

 

Evidence

 

[3]        The facts relevant to the determination of sentence were introduced through testimony and exhibits considered in the course of the trial. In addition, I have considered all of the evidence presented at the sentencing hearing, including the testimony of Chief Petty Officer 1st Class Conlon for the prosecution and Petty Officer 1st Class Perreault for the defence, as well as documents received as exhibits.

 

[4]        The offence was committed in the morning of 3 April 2017 after the offender, Leading Seaman Derival, had been called at home and ordered to report to his unit by his supervisor, Petty Officer 1st Class Perreault, to provide documents demonstrating that he was indeed on sick leave as he had earlier claimed. Later that morning, Leading Seaman Derival provided to his superior documents, including a CF 100 Leave Request Authorization Form (CF 100) which indicated, on its face, that he had requested and been authorized 33 days of sick leave by Lieutenant-Commander Sheppard on 28 February 2017, covering the period from 3 March to 4 April 2017. Another document revealed that Leading Seaman Derival had been scheduled to undergo a surgical procedure on 1 March 2017. Petty Officer 1st Class Perreault accepted the documents and allowed Leading Seaman Derival to go back home as he was on sick leave. However, following the departure of Leading Seaman Derival from his office, Petty Officer 1st Class Perreault took a closer look at the documents submitted and noticed a number of discrepancies on the CF 100, including the fact that the manuscript signature dates on the form predated the date of the generation of that form, indicated by a date/time stamp appearing in small character on the top right corner of the printed CF 100. Preliminary verification indicated that the document had not gone through the appropriate or normal steps for approbation, including a missing signature for the recommending authority, and a signature which did not resemble the signature of the approving officer who would have signed above his signature block and who was not, in any event, authorized to approve such type of leave.

 

[5]        At trial, Leading Seaman Derival confirmed that he had been asked to report to his unit with the required documentation to justify his sick leave. He said he looked for but could not find a CF 100 at home, so before seeing Petty Officer 1st Class Perreault, upon arriving at the unit on 3 April 2017, he went to see a colleague to obtain some help in locating what he claimed was an existing CF 100 on Monitor Mass, a personnel management computerized program. At the time of his testimony at trial, which the court rejected, Leading Seaman Derival could not remember if he had seen the CF 100 in Monitor Mass at the time or if it was deleted. In any event, Leading Seaman Derival admitted creating another CF 100, not without some difficulty, and set off to the various offices at the unit to obtain the required stamps and approval.

 

[6]        Leading Seaman Derival admitted antedating the section of the CF 100 reflecting the date on which leave was “requested by”. He inputted by hand a date of 28 February 2017. Next to that date is the signature of Leading Seaman Derival, who admitted having actually signed the document on 3 April 2017. Therefore, the date appearing on the document as the date leave was “requested by is false. Also, the evidence reveals that Leading Seaman Derival requested that a date stamp required to be placed on the CF 100 to indicate that he was not on duty in the period of requested leave be rolled back to 28 February 2017. His colleague agreed to do that as it was inconsequential; the stamp simply confirming that the person requesting leave was not on duty during the leave period, which would clearly be the case as the period of leave was largely in the past. That is a second feature on that document that is false.

 

[7]        As a result, the Court found that the CF 100 presented by Leading Seaman Derival to Petty Officer 1st Class Perreault on 3 April 2017 was a forged document as, indeed, it contained at least two false features that were made and included on the document by or at the request and collaboration of Leading Seaman Derival. The Court also concluded that these false entries were material to the document, in the circumstances of this case, where Leading Seaman Derival had made claims to representatives of the chain of command in March 2017 to the effect that he was on sick leave. Having been asked to come over to the unit and meet with Petty Officer 1st Class Perreault on 3 April 2017 to produce documents confirming that it was the case, he used the CF 100 which had to show dates relating to approval that were anterior to 3 April 2017 and close to the date of his surgery, in order to be credible.

 

[8]        The Court also concluded that the document was made with the intention to deceive. By antedating the request for leave next to his signature as requester and obtaining that a date stamp be rolled back to 28 February 2017, Leading Seaman Derival was intending for the document to be acted upon as if it had been initiated on 28 February 2017, which is contemporaneous with the surgery he had undergone on 1 March 2017. That way, his statements to the effect that he had been on sick leave would be deemed credible and generate the expected action of approval and confirmation of the leave in the required personnel management systems so that his situation would be regularized with very little chance of being revisited.

 

[9]        At the sentencing hearing, the prosecution called Chief Petty Officer 1st Class Conlon who attended portions of the court martial as the Naval Fleet School Pacific Unit Chief, including the findings. He explained the divisional system in place in the Navy and at the School, as well as the expectations placed upon students, especially those with more experience undergoing the more advanced courses such as qualification level (QL) 5. He described the values of honesty and integrity as being important for all personnel of the Canadian Armed Forces (CAF). He said that superiors must rely upon the situations reported by subordinates to be able to support them adequately with various administrative actions. He added that this system of support would be heavily handicapped should detailed verifications be undertaken every time a subordinate claims to be in a given situation requiring support. He stated that a subordinate who misleads a superior on an issue such as sick leave breaches that necessary trust and that such behaviour must be addressed so that all other members of the unit feel actions undertaken are fair and appropriate. As for future plans regarding Leading Seaman Derival’s career, Chief Petty Officer 1st Class Conlon testified that, as far as the unit is concerned, Leading Seaman Derival will move on and in all likelihood be placed on another QL5 course starting in October 2018. However, he also mentioned that a career review by the Director of Military Careers Administration in Ottawa had been initiated following an unrelated event and is still ongoing, with an outcome that he could not assess at this point, especially since the results of this trial may be taken into account in deciding whether Leading Seaman Derival will be allowed to remain in the CAF and, if so, on what conditions.

 

[10]      In mitigation, the defence called Petty Officer 1st Class Perreault, Leading Seaman Derival’s supervisor since April 2017, to provide his assessment of the offender’s performance and conduct. Petty Officer 1st Class Perreault explained that Leading Seaman Derival was issued a recorded warning as a result of the events of April 2017, an administrative measure that was followed by a period of evaluation at the unit, the results of which having been documented in a number of periodic progress reports. He introduced two of these reports showing that Leading Seaman Derival’s performance and professional conduct had been excellent and that he had met all requirements outlined in the recorded warning. Petty Officer 1st Class Perreault also introduced two documents titled “Personal Development Review” concerning Leading Seaman Derival at the time he was serving on Her Majesty’s Canadian Ship (HMCS) Protecteur in 2012-2013 and 2014-2015. These paint a positive picture of Leading Seaman Derival’s performance and potential as marine engineer in the Navy.

 

Position of the parties

 

Prosecution

 

[11]      The prosecution submits that I should impose a sentence of reprimand and a fine of 3,000 dollars. It is submitted that this is the minimum sentence that would maintain discipline in light of the circumstances of this case and precedents in similar matters.

 

Defence

 

[12]      The defence submitted that a sentence of reprimand and a fine of 500 dollars, payable at a rate of 100 dollars per month, would suffice to meet the objectives of sentencing in this case. Defence counsel brought to the court’s attention a number of other precedents which include sentences in the range that he proposes, adding that the objectives of sentencing in this case can and should be met while recognizing the offender’s well engaged rehabilitation, along with other mitigating factors.

 

Analysis

 

Purpose, objectives and principles of sentencing

 

[13]      This case deals with an offence committed in military circumstances, involving an offender who is serving full time on active service in the Regular Force. In performing my duty to determine the sentence, it is therefore particularly important that I keep in mind the purpose of the military justice system, namely the promotion of good conduct by the proper sanction of misconduct. Sentencing by military tribunals allows discipline, efficiency and morale essential to the operational effectiveness of the CAF to be enhanced, creating conditions essential for mission accomplishment.

 

[14]      This military specificity does not mean that the purpose, objectives and principles applicable to sentencing at courts martial need to be entirely different than those applicable in the courts of criminal jurisdiction in Canada (see R. v. Tupper, 2009 CMAC 5, paragraph 30). The fundamental purpose of sentencing in a court martial is to ensure respect for the law and maintenance of military discipline by imposing punishments that have one or more of the following objectives, referred to at section 718 of the Criminal Code:

 

(a)        to denounce unlawful conduct and the harm done to victims and the community;

 

(b)        to deter the offender and other persons from committing offences;

 

(c)        to separate offenders from society where necessary;

 

(d)        to assist in rehabilitating offenders;

 

(e)        to provide reparations for harm done to victims or the community; and

 

(f)         to promote a sense of responsibility in offenders, and acknowledgment of the harm done.

 

[15]      When deciding what sentence would be appropriate, a sentencing judge must also take into consideration a number of principles:

 

(a)        a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender;

 

(b)        a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating either to the offence or the offender;

 

(c)        a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances – known as the parity principle;

 

(d)        an offender should not be deprived of liberty by imprisonment or detention if less restrictive sanctions may be appropriate in the circumstances; and

 

(e)        a sentence should constitute the minimum necessary intervention adequate in the applicable circumstances. For a court martial, this means imposing a sentence composed of the least severe punishment or combination of punishments required to maintain discipline, efficiency and morale.

 

Objectives and principles to be emphasized in this case

 

[16]      I agree with counsel that the circumstances of this case require that the focus be primarily placed on the objectives of denunciation and deterrence in sentencing the offender. The objective of rehabilitation is always to be kept in mind in a case such as this where the post-offence conduct has been satisfactory and it is foreseen that the offender will continue to serve.

 

[17]      In terms of the principles applicable, it appears that the principle of parity is at the source of the submissions of counsel who focussed on precedents in support of their respective positions. Indeed, as both parties suggested that a punishment of a reprimand would be appropriate, what is left to be determined is the amount of the accompanying fine, from the 500 dollars suggested by the defence to the 3,000 dollars suggested by the prosecution.

 

[18]      The Queen's Regulations and Orders for the Canadian Forces require that the judge imposing a sentence at a court martial considers any indirect consequence 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. Indeed, sentencing is an individualized process both at courts martial and in the courts of criminal jurisdiction in Canada.

 

The offender

 

[19]      Leading Seaman Derival is a 28-year-old marine technician who joined the Regular Force on 17 August 2011. Upon completing basic training, he was posted to Canadian Forces Base Esquimalt where he attended further training and spent almost three years posted to HMCS Protecteur, where he served while the ship was at sea and alongside. He is currently posted to Naval Fleet School Pacific while waiting to be loaded on a QL5 Marine Engineer Course to have another chance to obtain the qualification he has failed to achieve on one previous occasion, having been removed from training in January 2017, following a number of academic failures. Until he is able to pursue that training, most likely in October 2018, Leading Seaman Derival is currently employed in supporting the Seamanship Division at the boat shed and is expected to pursue academic upgrading on his own time, with the availability of support as required.

 

[20]      As previously noted in summarizing the evidence heard at the sentencing hearing, for the incident of 3 April 2017, Leading Seaman Derival was imposed a recorded warning which involved a six-month follow-up period at the unit, which was completed successfully. From the unit’s perspective, his career should continue. Yet, the military career of Leading Seaman Derival is currently under a formal review at a higher level with the Director of Military Careers Administration in Ottawa, a review initiated as a result of an incident which caused him to stand trial in civilian court in Halifax, Nova Scotia, resulting in an acquittal. That review will also consider the results of this court martial in arriving at a decision sometime in the future. It would be inappropriate for me to speculate as to the outcome of that review which bears no weight in my decision on the sentence to be imposed.

 

The offence

 

[21]      To assess the submissions of counsel on sentence, the Court has considered the objective seriousness of the offence as illustrated by the maximum punishment available. Offences under subsection 368(1) of the Criminal Code are punishable by imprisonment for a term not exceeding ten years or to less punishment.

 

[22]      As it pertains to the subjective gravity of the conduct, I consider that by antedating the request for leave next to his signature as requester and obtaining that a date stamp be rolled back to 28 February 2017, Leading Seaman Derival was intending to deceive the supervisor to whom he gave the CF 100. Leading Seaman Derival intended the document to be acted upon as if it had been initiated on 28 February 2017, which is contemporaneous with the surgery he had undergone on 1 March 2017. That way, his statements to the effect that he had been on sick leave would be found to be credible and generate the expected approval.

 

[23]      That behaviour is contrary to valid expectations of the chain of command to the effect that all personnel will respect the value of integrity and act in such a way as to maintain the trust of their peers and supervisors. This not only emanates from the evidence provided by Chief Petty Officer 1st Class Conlon, but is also outlined in the Department of National Defence and Canadian Forces Code of Values and Ethics and its related Statement of Defence Ethics, which members of the CAF are bound to obey as provided for at Defence Administrative Order and Directive 7023-1, Defence Ethics Programme. In addition, as outlined in the case of R. v. Chabot-Leroux, 2017 CM 4015, at paragraph 13, infractions that involve misrepresentations in relation to sick leave take a particular dimension as CAF members on sick leave continue to receive their pay while they should fulfil their duty to get better and return to unrestricted service as soon as possible. For that system to function, a necessary element of trust is required on the part of all involved to avoid counterproductive and stressful verifications. The counterpart of that is that any abuse needs to be addressed. I, therefore, find that the offence in this case necessarily involved an element of breach of trust of some gravity which must be considered in arriving at a proper sentence.

 

[24]      That being said, although I found that by his actions Leading Seaman Derival intended to deceive his supervisor to obtain confirmation to the effect that he was on sick leave for the duration outlined in the CF 100 he submitted, I am not concluding that his actions were intended to obtain an unwarranted exemption from duty for the full period covered by the CF 100. Indeed, just by reading the particulars of the charges as they appear on the charge sheet, Leading Seaman Derival was not considered to be absent without leave for the full 33 days of sick leave requested in the CF 100, that is between 3 March and 4 April 2017. After considering all of the evidence heard in the course of the trial, there is still lingering uncertainty on the status of Leading Seaman Derival for that period, especially given that none of the witnesses heard who may have been expected to be supervising him accepted full responsibility as supervisor from the time he was taken off the classroom environment on 20 January 2017 and his return to the unit for a first meeting with Petty Officer 1st Class Perreault on 3 April 2017. Although I do not accept the thesis proposed by the defence of unofficial leave granted by representatives of the chain of command or a doctor, it remains that I have not been convinced beyond a reasonable doubt that Leading Seaman Derival’s actions were taken for the purpose of justifying an unauthorized absence for the entire duration stated in the CF 100. Consequently, I agree with defence counsel that the number of days stated on the form must be discounted in the limited circumstances of this case.

 

Aggravating and mitigating factors

 

[25]      As provided in the enumeration of principles of sentencing, a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating either to the offence or the offender. That being said, one aggravating or mitigating factor, in isolation, cannot operate to increase or decrease the sentence to a level that would take it outside of the range of what would be an adequate sentence.

 

[26]      The circumstances of the offence in this case reveal the following aggravating factors:

 

(a)        The breach of trust that the offence constitutes. Not only did Leading Seaman Derival utter a forged document, but he did so directly to a superior in a context where trust was important for the proper functioning of the sick leave regime in the CAF. It is important to recognize that values including that of trust are extremely important in the context of the CAF where individuals rely on each other for the proper accomplishment of tasks and missions, often in the face of danger.

 

(b)        The fact that Leading Seaman Derival was an experienced sailor who should have known better and led by example. A person of the seniority of Leading Seaman Derival attending the Fleet School in the context of a more senior level course such as a QL5 is expected to have assimilated the basic CAF values including that of integrity and as a consequence would benefit from more leeway from the chain of command. In this case, no one challenged Leading Seaman Derival’s assertion that he was on sick leave when the first inquiries were made in the course of an annual leave verification. He was asked to provide justification for administrative purposes and, once he provided documents, Petty Officer 1st Class Perreault took this information at face value and let him go back home. By his actions, Leading Seaman Derival betrayed that special trust and set a poor example for junior personnel at the School.

 

(c)        Finally, the fact that Leading Seaman Derival involved at least one other colleague in his actions in forging a document. In obtaining the assistance of two colleagues who testified at trial in the making of the CF 100, and especially in asking a colleague to roll back the stamp to read a date anterior to the date the CF 100 should have been stamped, Leading Seaman Derival committed misconduct which spread to others in his unit, with the potential to prejudice the respect that every member must have in relation to ethical principles and values.

 

[27]      The Court also considered the following as mitigating factors arising either from the circumstances of the offence or the offender in this case:

 

(a)        The one-time nature of the offence and the improvisation involved. I do believe that Leading Seaman Derival did not put a lot of thinking in his actions on the morning of 3 April 2017 as he was unexpectedly called at home and ordered to come to the unit to present the documentation supporting the sick leave he was claiming to be enjoying at the time. The forgery was unsophisticated and in all likelihood the result of some panic on his part and was not part of a fraudulent scheme to obtain financial gain.

 

(b)        The fact that Leading Seaman Derival was under significant stress at the time of the offence. As evidenced during the trial, the criminal trial faced by Leading Seaman Derival in Halifax at the time of the offence was probably an important factor in him making a poor choice on 3 April 2017, as his ability to focus on other issues was hampered by the stress of a concurrent criminal proceeding in a civilian court.

 

(c)        The fact that Leading Seaman Derival is a first-time offender. Perhaps because of the stress he was facing, it would appear that the conduct of Leading Seaman Derival on 3 April 2017 was out of character for him, as also evidenced by reports of conduct and potential, previously and since.

 

(d)        The post-offence conduct of Leading Seaman Derival revealing his potential to make a positive contribution to both the CAF and Canadian society in the future. The offender has close to seven years of honourable service with the Navy and representatives of his chain of command have confidence that he will be able to make a valuable contribution to the CAF on operations and training, as evidenced by his progress since the offence was committed. Regardless of the length of any future career in the CAF, Leading Seaman Derival is still young and has the potential to continue making a positive contribution to Canadian society for many years in the future.

 

Indirect consequence of the finding or of the sentence

 

[28]      I am also aware of the consequences of the conviction and the sentence being imposed: Leading Seaman Derival will have a criminal record and the conviction will be considered, most likely as a negative factor, in the ongoing administrative review of his career.

 

Determination of the appropriate sentence

 

[29]      As suggested earlier, both counsel are of the view that a reprimand should be the main punishment imposed in this case and I do not intend to depart from that assessment. What is left to be determined is the amount of the accompanying fine, from 500 dollars suggested by the defence to 3,000 dollars suggested by the prosecution. The principle of parity of sentences must be observed in determining what amount of fine would be required to meet the interest of justice, keeping in mind, of course, that I must impose the least amount of fine required to maintain discipline, efficiency and morale in the military.

 

[30]      Despite the best efforts of counsel, there is no case perfectly on point as to allow me to assign precisely an amount of fine that would be adequate. That is not unusual. The sentencing judge determining a sentence that respects the principle of parity does not apply a precise mathematical formula. He or she must consider relevant precedents and weigh in the different circumstances, some suggesting a more severe sentence others suggesting a less severe one to arrive at what he or she considers to be an adequate punishment.

 

[31]      Here defence counsel submitted a number of precedents where sentences of reprimand and lower fines were imposed as a result of joint submissions. I do not find those precedents to be particularly authoritative as to the appropriate sentence to be imposed as a result of findings of guilt after a full trial and contested sentencing hearings. Indeed, trial judges should not depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute, or is otherwise contrary to the public interest. Therefore, the acceptance of joint submissions simply tells us that the proposed sentence did not reach this high threshold. As explained by Moldaver J. of the Supreme Court of Canada in R. v. Anthony-Cook, 2016 SCC 43, the law has been set that way in consideration of the undeniable advantages that joint submissions bring to the administration of justice, especially in economy of resources. To illustrate, it should be quite clear from the reasons for sentence in Chabot-Leroux that the sentence that would have been imposed following a contested trial and sentencing hearing would have been different and higher than what was suggested in the joint submission. The offender in that case has benefitted from his agreement to a plea bargain and an assured resolution.

 

[32]      The only case that is not a joint submission submitted by the defence is R. v. Captain J.B. Blacquier, 2007 CM 4032 where a first-time offender had submitted a false document to obtain a bursary from a university and was found guilty of three counts of forgery, fraud and having uttered a forged document as part of this one-time scheme. The sentence imposed was a severe reprimand and a fine of 2,500 dollars. I believe this was a more egregious crime committed by an accused with more financial means, an outcome reflected in the imposition of a harsher punishment than what is sought here, as reflected by the severe reprimand imposed in combination with the fine.

 

[33]      For its part, the prosecution proposed four cases where sentences were contested. I find that the cases of R. v. ex-Ordinary Seaman N.K. Stewart, 2007 CM 4018 and R. v. Soudri, 2015 CM 3008 to be the most adequate to compare to the case at bar. In Stewart, a former ordinary seaman was sentenced to a reprimand and a fine of 3,000 dollars for altering a medical document on five occasions to mislead superiors to the effect that he was sick and unable to attend his place of duty for those five days. He was a repeat offender. Second Lieutenant Soudri was sentenced to a reprimand and a fine of 2,000 dollars for having used attendance certificates pertaining to his spouse’s appointments which he knew did not reflect the reality to obtain permission to be absent from his unit on seven different days over the span of a few months. Those cases involved multiple offences, which makes their circumstances more severe, but also involved more junior personnel in terms of years of experience in the CAF, which makes the circumstances of these offenders different than those of Leading Seaman Derival.

 

[34]      Having read the reasons for these two cases and in balancing the factors that make these cases less or more severe, I have concluded that a fine of 1,800 dollars should be imposed in this case to accompany the reprimand, in consideration of the breach of trust involved on the part of an experienced member who should have known better about the importance of acting ethically, especially as it pertains to sick leave.

 

[35]      Under subsection 145(2) of the NDA, the terms of payment of a fine are at the discretion of the service tribunal that imposes it. At the sentencing hearing, the defence requested that the fine be made payable by instalments of 100 dollars per month, yet did not provide in evidence any financial information to the effect that Leading Seaman Derival would experience significant financial strain should a higher monthly payment be required. Indeed, the pay information submitted as Exhibit 12 reveals that Leading Seaman Derival has the means to pay a fine at a rate of much more than 100 dollars per month. To have its full effect, a fine has to have an impact and given the pay of the offender in this case, I am not convinced that the fine would have the required impact if it is paid at the low rate suggested by the defence. Consequently, I will order that the fine be payable at a rate of 300 dollars per month.

 

Conclusion and disposition

 

[36]      Leading Seaman Derival, you may have come to realize by now that you should have done things differently in April 2017 when preparing and submitting that CF 100 to your chain of command. More importantly, after two recent episodes where you have been the accused in trials, I hope that you have resolved not to re-offend. From what I have heard at trial, I believe your chain of command has been and continues to be more than supportive towards you and your continuing career in the Navy. It is up to you to regain the trust of your peers and superiors, to prepare adequately for further demanding training courses and to be worthy of the confidence placed in you to succeed in your career and as a productive member of society.

 

FOR THESE REASONS, THE COURT:

 

[37]      SENTENCES you to a reprimand and a fine in the amount of 1,800 dollars, payable in six monthly instalments of 300 dollars, commencing no later than 1 June 2018. In the event you are released from the CAF for any reason before the fine is paid in full, any outstanding unpaid balance will be due the day prior to your release.

 

Counsel:

 

The Director of Military Prosecutions as represented by Major M.E. Leblond

 

Lieutenant-Colonel D. Berntsen, Defence Counsel Services, Counsel for Leading Seaman K. Derival