R v Olive, 2011 CM 2010

COURT MARTIAL Citation: R v Olive , 2011 CM 2010 Date: 20110512 Docket: 201113 Standing Court Martial Sault Ste Marie Armoury Sault Ste Marie, Ontario, Canada Between: Her Majesty the Queen - and - Sergeant R.R. Olive, Offender Before: Commander P.J. Lamont, M.J. REASONS FOR SENTENCE (Orally) [ 1 ] Sergeant Olive, you have been found guilty, contrary to your plea, of one offence under

section 129 of the National Defence Act ; that is to say, conduct to the prejudice of good order and discipline. [ 2 ] It now falls to me to determine and to pass a sentence upon you.

In so doing, I have considered the principles of sentencing that apply in the ordinary courts of criminal jurisdiction in Canada and at courts martial. [ 3 ] I have as well considered the facts of the case as disclosed by the evidence heard in the course of the trial and the materials that have been received during this sentencing phase of the proceedings, your evidence, which you offered in the course of this morning, and the other materials submitted during the course of this hearing.

I have as well considered the submissions of counsel, both for the prosecution and for the defence. [ 4 ] The principles of sentencing guide the court in the exercise of its discretion in determining a fit and proper sentence in an individual case. The sentence should be broadly commensurate with the gravity of the offence and the blameworthiness or degree of responsibility and character of the offender.

The court is guided by the sentences imposed by other courts in previous similar cases, not out of a slavish adherence to precedent, but because it appeals to our common sense of justice that similar cases should be dealt with in

similar ways. Nevertheless, in imposing sentence, the court takes account of the many factors that distinguish the particular case it is dealing with, both the aggravating circumstances that may call for a more severe punishment and the mitigating circumstances that may reduce a sentence. [ 5 ] The goals and objectives of sentencing have been expressed in different ways in many previous cases. Generally, they relate to the protection of society, of which, of course, the Canadian Forces is a part, by fostering and maintaining a just, a peaceful, a safe, and a law-abiding community.

Importantly, in the context of the Canadian Forces, these objectives include the maintenance of discipline, that habit of obedience which is so necessary to the effectiveness of an armed force. The goals and objectives also include deterrence of the individual so that the conduct of the offender is not repeated and general deterrence so that others will not be led to follow the example of the offender. Other goals include the rehabilitation of the offender, the promotion of a sense of responsibility in the offender, and the denunciation of unlawful behaviour.

One or more of these objectives will inevitably predominate in crafting a sentence in an individual case, yet it should not be lost sight of that each of these goals calls for the attention of the sentencing court, and a fit sentence should reflect a wise blending of these goals tailored to the particular circumstances of the case. [ 6 ]

Section 139 of the National Defence Act prescribes the possible punishments that may be imposed at court martial. Those possible punishments are limited by the provision of the law which creates the offence and provides for a maximum punishment. Only one sentence is imposed upon an offender whether the offender is found guilty of one or more different offences, but the sentence may consist of more than one punishment. It is an important principle that the court should impose the least severe punishment that will maintain discipline.

In arriving at the sentence in this case, I have considered the direct and indirect consequences for the offender of the finding of guilt and the sentence I am about to impose. [ 7 ] The facts of this offence were set out in the reasons for finding that I delivered earlier today and I do not intend to repeat anything that I said on that occasion. I will add though that it appears to me that the essentially wrongful part of the offence for which you have been found guilty is the failure to seek and obtain approval from higher authorities for the course of action that you proposed to take last fall.

There is nothing before me to suggest that approval would not have been granted in this case if sought. [ 8 ] I have considered the mitigating and aggravating circumstances of this case that have been referred to by counsel, including the personal circumstances of you, Sergeant Olive. You are still a young man at 28 years of age, yet you have managed to accumulate eight years of service in the Canadian Forces and risen in the ranks to your current rank of sergeant. With the rank that you now hold comes responsibilities, of which I'm sure you are aware.

If you continue your career in the Canadian Forces, either as a commissioned officer or in the non-commissioned ranks, I believe you will come to appreciate more and more the importance of the example that you are called upon to set for the men and women under your authority or command. [ 9 ] You have served your country with distinction by volunteering as a member of the Reserve Force to take on two deployments in Afghanistan. You appear to be highly thought of by your officers.

I have no reason to doubt the accuracy of Major Greely's assessment of your character as disclosed in the material before me, but I trust that if you choose to follow your career and rise through the ranks, you will continue to think more and more about the example that you offer to your subordinates. It is not sufficient merely to instruct and tell people under your authority what to do, they are watching you and they intend to emulate your example as a properly self- disciplined member of the Canadian Forces.

The responsibility, therefore, falls to you to be the right kind of example. [ 10 ] I accept that you were motivated to commit this offence by a desire to furnish the mess at your home unit with memorabilia from your service in Afghanistan, but the noblest of motives does not excuse the failure to comply with orders. One doesn't have to be a soldier to understand that obedience to and compliance with lawful orders is the very touchstone of discipline and it is that discipline that so clearly distinguishes members of the Canadian Forces from the enemy you were fighting in Afghanistan.

Only you can decide to adhere strictly to and fully comply with such orders as may be given to you as a member of the Canadian Forces, but you must understand that your failure to adhere to this discipline in the future will jeopardize your very promising career, either as an officer or as a senior non-commissioned member. [ 11 ] My duty as I conceive it is to do what I can by means of this sentence to encourage you in the habit of obedience to lawful orders, both for your own good and the good of the community and nation that you serve with distinction.

FOR THESE REASONS, THE COURT: [ 12 ] SENTENCES you to a reprimand and a fine in the amount of $1,500. The fine is to be payable in monthly instalments of $500

each, commencing 15 June and continuing for the following two months. In the event you are released from the Canadian Forces for any reason before the fine is paid in full, the then outstanding unpaid balance is to be paid the day prior to your release. Counsel: Captain R.D. Kerr, Canadian Military Prosecution Services Counsel for Her Majesty the Queen Lieutenant-Commander P.D. Desbiens, Directorate of Defence Counsel Services Counsel for Sergeant R.R. Olive