R. v. Giroux, 2013 CM 3018

COURT MARTIAL Citation: R. v. Giroux , 2013 CM 3018 Date: 20130722 Docket: 201340 Standing Court Martial Canadian Forces Base Bagotville Bagotville, Quebec, Canada Between: Her Majesty the Queen - and - Major J.P. Giroux, Offender Before: Lieutenant-Colonel L.-V. d'Auteuil, M.J. REASONS FOR SENTENCE (Orally) [ 1 ] Major Giroux, having accepted and recorded a plea of guilty in respect of the third charge on the charge sheet, the court now finds you guilty of this charge.

Considering that the first and second charges were withdrawn by the prosecution, the court is left with no other charges to deal with. [ 2 ] It is now my duty as the military judge presiding this Standing Court Martial to determine the sentence. [ 3 ] The military justice system constitutes the ultimate means to enforce discipline in the Canadian Forces, which is a fundamental element of the military activity. The purpose of this system is to prevent misconduct or, in a more positive way, see the promotion of good conduct.

It is through discipline that an armed force ensures that its members will accomplish, in a trusting and reliable manner, successful missions. It also ensures that public order is maintained and that those who are subject to the Code of Service Discipline are punished in the same way as any other person living in Canada. [ 4 ] It has long been recognized that the purpose of a separate system of military justice or tribunal is to allow the Armed Forces

to deal with matters that pertain to the respect of the Code of Service Discipline and the maintenance of efficiency and the morale amongthe Canadian Forces (see R. v. Généreux (SCC), [1992] 1 SCR 259 at 293). That being said, the punishment imposedby any tribunal, military or civilian, should constitute the minimum necessary intervention that is adequate in the particularcircumstances. [5] Here, in this case, the prosecutor and the offender's defence counsel made a joint submission on sentence to be imposed bythe court.

They recommended that this court sentence you to a reprimand and a fine in the amount of $800 in order to meet the justicerequirements. Although this court is not bound by this joint recommendation, it is generally accepted that the sentencing judge shoulddepart from the joint submission only when there are cogent reasons for doing so. Cogent reasons means where the sentence is unfit,unreasonable, would bring the administration of justice into disrepute or would be contrary to the public interest (see R. v.

Taylor, 2008CMAC 1, at paragraph 21). [6] As the Supreme Court of Canada recognized in Généreux, in order to maintain the Armed Forces in a state of readiness, themilitary must be in a position to enforce internal discipline effectively and efficiently. It emphasized that, in the particular context ofmilitary justice, breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be thecase if a civilian engaged in such conduct. However, the law does not allow military courts to impose a sentence that would be beyondwhat is required in the circumstances of the case.

In other words, any sentence imposed by a court must be adapted to the individualoffender and constitute the minimum necessary intervention since moderation is the bedrock principle of the modern theory ofsentencing in Canada. [7] The fundamental purpose of sentencing in a court martial is to ensure respect for the law and maintenance of discipline byimposing sanctions that have one or more of the following objectives: (

a) to protect the public, which includes the Canadian Forces; (

b) to denounce unlawful conduct; (

c) to deter the offender and other persons from committing the same offence; (

d) to separate offenders from society where necessary; and (

e) to rehabilitate and reform offenders. [8] When imposing sentences, a military court must also take into consideration the following principles: (

a) the sentence must be proportionate to the gravity of the offence; (

b) the sentence must be proportionate to the responsibility and previous character of the offender; (

c) the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similarcircumstances; (

d) an offender should not be deprived of liberty, if applicable in the circumstances, if less restrictive sanctions may beappropriate in the circumstances. In short, the court should impose a sentence of imprisonment or detention only as a last resort as it wasestablished by Court Martial Appeal Court of Canada and 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. [ 9 ] I came to the conclusion that, in the particular circumstances of this case, sentencing should place the focus on the objectives of denunciation and general deterrence. [ 10 ] Here, the court is dealing with a military offence about wilfully or negligently making a false statement in a document signed by Major Giroux that was required for an official purpose. [ 11 ] Essentially, Major Giroux received an email in May 2012 warning him about the upcoming spring council held by 1 Canadian Air Division (1 CAD). He made arrangements to go to Winnipeg in June 2012.

His departure flight for this temporary duty was from Bagotville and set to take off at 0540 hours, Tuesday, 19 June 2012. However, on 19 June 2012, in the afternoon, he showed up at the Operations

Section orderly room dressed in civilian clothes. [ 12 ] Corporal Dumont, who had made arrangements, asked him basically, "What happened?" He told him that he had changed his flight because the previous one was too early and his intent was to take the next available flight that day, and that he paid for the cost of changing the flight. [ 13 ] The week after, on Tuesday, 26 June 2012, Major Giroux filled and signed an official document, entitled "Temporary Worksheet," and he submitted it to Corporal Dumont.

The details of the trip corresponded to the missed flight and not the actual flight taken from Bagotville to Winnipeg. This document was required by the unit in order to process Major Giroux's claim. [ 14 ] This type of offence is directly related to Canadian Forces members' ethical obligations such as integrity and honesty, which are essential for the accomplishment of any task or mission by any Canadian Forces member. [ 15 ] Now, in arriving at what the Court considers a fair and appropriate sentence, the Court has considered the following mitigating and aggravating factors: (

a) the Court considers as aggravating the objective seriousness of the offence. The offence you were charged with was laid in accordance with paragraph 125(

a) of the National Defence Act , which is punishable by three years' imprisonment or to less punishment; and (

b) there's the subjective seriousness of the offence. As highlighted by the prosecutor, essentially your rank, function and experience; you have roughly about 20 years in the Canadian Forces, you should have known better. Unfortunately, you submitted that claim or that form in a different way than it was supposed to be and with your experience, I think you clearly understand that it was not something to do. Therefore, I have to consider your rank, function, and experience as aggravating factors. [ 16 ] There are also mitigating factors that I have considered: (

a) your guilty plea. Through the facts presented to this Court, the Court must consider your guilty plea as a clear, genuine sign of remorse and that you are very sincere in your pursuit of remaining as a valued asset within the Canadian Forces and also in Canadian society. It also disclosed the fact that you are taking full responsibility for what you did; (

b) as suggested by your counsel, I have considered you as a first-time offender meaning that there is no annotation on your conduct sheet reflecting similar offences. There is no indication of criminal offences either in relation to what happened; (

c) there is your age and career. Being 37 years old and having, so far, a good career in the Canadian Forces, I think it is something that I have to also consider as a mitigating factor;

(

d) no consequences flowed from what you did. Basically, there's no loss of public funds, and this has to be considered; and (

e) there's the fact that it is an isolated incident, out of character from somebody like you, and, I think, this has to be considered, too. [ 17 ] As a matter of parity on sentence as suggested by the prosecutor, case law indicates clearly that such an offence calls for a sentence that goes from a severe reprimand to a reprimand and a fine or only a fine. In these circumstances the joint submission clearly falls within that range. [ 18 ] As often mentioned by military tribunals, a reprimand must be seen as a serious punishment in the military context.

It expresses disapproval towards the actions or conduct of a person. [ 19 ] You also have to remember that this punishment will remain on your conduct sheet unless you get a pardon for the criminal record you are getting today.

The reality is that your conviction will carry out a consequence that is often overlooked, which is that you will now have a criminal record, and that is not insignificant. [ 20 ] In consequence, the Court will accept the joint submission made by counsel to sentence you to a reprimand and a fine in the amount of $800, considering that it is not contrary to the public interest and will not bring the administration of justice into disrepute. [ 21 ] I hope you will be able to put this incident behind you, now that the court martial is concluding and that you will continue your work at being a valuable asset.

There is no indication that this is a habit or something you do often. In fact, as I mentioned, it is an isolated incident and you will be able to carry on with your career in the Canadian Forces. FOR THESE REASONS, THE COURT: [ 22 ] FINDS you guilty of the third charge on the charge sheet for an offence under paragraph 125(

a) of the National Defence Act . [ 23 ] SENTENCES you to a reprimand and a fine in the amount of $800, payable immediately. Counsel: The Director of Military Prosecutions as represented by Major J.S.P. Doucet Major S.L. Collins and Lieutenant-Commander P.D. Desbiens, Defence Counsel Services, Counsel for Major J.P. Giroux