R v Fondren, 2011 CM 4006

COURT MARTIAL Citation: R v Fondren , 2011 CM 4006 Date: 20110304 Docket: 201055 Standing Court Martial Canadian Forces Base Borden Borden, Ontario, Canada Between: Her Majesty the Queen - and - Private R.M. Fondren , Offender Before: Lieutenant-Colonel J-G Perron, M.J. REASONS FOR SENTENCE (Orally) [ 1 ] Private Fondren, having accepted and recorded your plea of guilty of having disobeyed a lawful command of a superior officer contrary to

section 83 of the National Defence Act , the court now finds you guilty of this charge. The court must now impose a just and appropriate sentence in this case. [ 2 ] The statement of circumstances, to which you formally admitted the facts as conclusive evidence of your guilt, the evidence heard during the Charter application and your testimony provide this court with the circumstances surrounding the commission of this offence. Sergeant Boland, Master Corporal Janelle and Sergeant Feeney also testified during the sentencing phase of this trial.

Your counsel has also presented seven exhibits. [ 3 ] At the time of the offence, you were a student at the Canadian Forces School of Aerospace Technology and Engineering (CFSATE). You were tried summarily on Friday, 16 July 2010 and sentenced to four days of confinement to barracks (CB). You were unhappy with the outcome of this trial and informed your assisting officer you wanted a review of this

summary trial. You were told a review would take some time and that you would have to serve your punishment.

[ 4 ] You met with Chief Warrant Officer Stone, the school's Chief Warrant Officer, after the

summary trial. He explained the CB procedures and the Base Borden Standing Order pertaining to CB. You refused to sign a document stating you understood the rules pertaining to CB. You then left the Chief Warrant Officer's office accompanied by an escort to collect the items of kit you needed for your punishment. You told the escort you would not gather your kit. The escort brought you to Chief Warrant Officer Stone. Chief Warrant Officer Stone told you numerous times that you had to collect your kit. You replied no initially and then remained silent.

He informed you that you had the choice of collecting your kit for your CB or to be put under arrest. You refused again. Chief Warrant Officer Stone called the military police. He arrested you at 1500 hours on 16 July and asked the military police to bring you to the guardroom. [ 5 ] You were brought to the guardroom by the military police and Chief Warrant Officer Stone made arrangements to have personnel available to guard you until Monday morning. You spoke to duty counsel during the evening of 16 July.

You were released under conditions at approximately 1625 hours on 17 July 2010. [ 6 ] The prosecutor has recommended a sentence of a fine in the amount of $500 and a period of CB from 14 to 21 days. He stated he could have sought detention, but did not do so because of the plea of guilty and the fact that detention would prevent you from graduating from your present course and thus deprive the Canadian Forces of your qualified services.

He argued that the sentencing principles of general deterrence and specific deterrence as well as denunciation are the most important principles in this case. [ 7 ] Your counsel suggests the punishment of CB is not appropriate in this case. She has also suggested that, should the court decide your Charter rights had not been breached, a fine in the amount of $200 to $500 would be appropriate. The court could also impose a reprimand should it conclude that a fine would not be sufficient.

In the event the court had decided that a breach of your Charter rights had occurred and had not ordered a stay of proceedings, defence counsel suggested that a caution would be the appropriate punishment. [ 8 ] As indicated by the Court Martial Appeal Court (CMAC), sentencing is a fundamentally subjective and individualized process where the trial judge has the advantage of having seen and heard all of the witnesses and it is one of the most difficult tasks confronting a trial judge. [1] [ 9 ] The CMAC also clearly stated in Tupper [2] that the fundamental purposes and goals of sentencing as found in the Criminal Code of Canada [3] apply in the context of the military justice system and a military judge must consider these purposes and goals when determining a sentence.

The fundamental purpose of sentencing is to contribute to respect for the law and the protection of society, and this includes the Canadian Forces, by imposing just sanctions that have one or more of the following objectives: a. to denounce unlawful conduct; 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 to the community; and f. to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 10 ] The sentencing provisions of the Criminal Code , sections 718 to 718.2 , provide for an individualized sentencing process in which the court must take into account not only the circumstance of the offence, but also the specific circumstances of the offender. [4] A sentence must also be similar to other sentences imposed in similar circumstances. [5] The principle of proportionality is at the heart of any sentencing. [6] The Supreme Court of Canada tells us at paragraph 42 of Nasogaluak that proportionality means a sentence must not exceed what is just and appropriate in light of the moral blameworthiness of the offender and the gravity of the offence.

[ 11 ] An offender should not be deprived of liberty, if less restrictive sanctions other than imprisonment may be appropriate in the circumstances. This general rule of sentencing created by Canadian jurisprudence is now found in

section 718.2 of the Criminal Code , but the CMAC also indicated that the particular context of military justice may, in appropriate circumstances, justify and, at times, require a sentence that will promote military objectives. [7] [ 12 ] The court must also impose a sentence that should be the minimum necessary sentence to maintain discipline. The ultimate aim of sentencing is the restoration of discipline in the offender and in military society.

Discipline is that quality that every Canadian Forces member must have which allows him or her to put the interests of Canada and the interests of the Canadian Forces before personal interests. This is necessary because Canadian Forces' members must willingly and promptly obey lawful orders that may have devastating personal consequences such as injury and death. Discipline is often described as a quality because, ultimately, although it is something which is developed and encouraged by the Canadian Forces through instruction, training and practice, it is an internal quality.

It is one of the fundamental prerequisites to operational efficiency in any armed force. [ 13 ] I will now set out the aggravating circumstances and the mitigating circumstances that I have considered in determining the appropriate sentence in this case. I consider the following to be aggravating: The offence of disobeying a lawful command of a superior officer is objectively one of the most serious offences under the Code of Service Discipline since the maximum sentence is imprisonment for life. Lawful commands must be obeyed and there is no right or correct manner of disobeying a lawful command.

Having said this, certain circumstances of disobedience of a lawful command can be subjectively more serious than others. The manner in which the command is disobeyed, the nature of the command given and the context in which it was disobeyed are certain factors that could be used to assess the subjective seriousness of the offence. Subjectively, the present offence is not as serious as the offences contained in the jurisprudence presented to this court. While it is true that you disobeyed the order of a Chief Warrant Officer, you did so in a very reserved manner in his office.

You did not show any lack of respect towards Chief Warrant Officer Stone and did not use any vulgarities when you were refusing to obey his order, in fact, you were mostly silent. I do not agree with the prosecutor that you showed contempt towards the Chief Warrant Officer when you disobeyed his order. [ 14 ] I do agree with the prosecutor that you did not respect the

summary trial process. You appear to have problems communicating when you find yourself in stressful situations. Sergeant Boland testified that you are an above-average student academically. He stated you were quiet and reserved and would tense up in front of authority and have problems communicating in such circumstances, but you were at ease with your peers. You might have disagreed with the punishment you received, but you did not react correctly. You have been part of the Canadian Forces since 1993.

It appears that you still haven't learned how to react appropriately to authority or to stressful situations. [ 15 ] As to the mitigating circumstances, I note the following: Although you do have a conduct sheet, it only contains the offence for which you were tried summarily. You have pled guilty. You have also testified and you have expressed your remorse. Therefore, the court accepts that you do regret your actions and that you do take full responsibility for this offence. [ 16 ] I have reviewed your course reports found at Exhibits 10 and 11.

These documents and the testimony of your instructors describe a hard working, intelligent person. [ 17 ] I have also taken into consideration the fact that you spent one day in cells and the conditions of your release from custody. You had to report to the base duty officer at 1800 hours on Saturday and Sunday, 17 and 18 July, and you were confined to CFB Borden until 16 October 2010.

The conditions of your release were inserted on CPIC and this caused you to be searched when you crossed the Canada-US border during the past Christmas season. [ 18 ] One has to question why you were confined to CFB Borden for such a long period when it was clear from the testimony of Chief Warrant Officer Stone that the issue of your attendance in court was never a concern to him. It would appear this confinement to the base was more punitive in nature than a necessary condition to your release from custody.

One also wonders why the custody review officer imposed this condition and why it was imposed for such a long time. I will give this mitigating factor much weight when determining the appropriate sentence. [ 19 ] While the prosecutor has stated he could have requested detention, the prosecutor has not provided this court with any jurisprudence or any justification why this punishment would be appropriate in the present case. As such, I do not agree that this case is one that would justify a punishment of detention.

[ 20 ] Having reviewed the jurisprudence presented by counsel, the specific facts of this case and the aggravating and mitigating factors, I would have considered a fine in the amount of $200 as the appropriate sentence. As I indicated earlier, I will also consider the breach of your fundamental right not to be arbitrarily arrested and detained to further mitigate your sentence. [ 21 ] I believe the sentence must reflect primarily the principle of deterrence, general and specific, and of denunciation.

After reviewing the totality of the evidence, the jurisprudence and the representations made by the prosecutor and your defence counsel, as well as taking into account my earlier decision concerning the breach of your right under the Charter , THE COURT [ 22 ] SENTENCES you to a fine in the amount of $50. Counsel: Major A.M. Tamburro, Canadian Military Prosecution Services Counsel for Her Majesty the Queen Captain S.L. Collins, Directorate Defence Counsel Services Counsel for Private R.M. Fondren