R v McEwen, 2013 CM 3011

COURT MARTIAL Citation: R v McEwen , 2013 CM 3011 Date: 20130425 Docket: 201269 Standing Court Martial Fort York Armoury Toronto, Ontario, Canada Between: Her Majesty the Queen - and - Lieutenant-Colonel J.M.C. McEwen, Offender Before: Lieutenant-Colonel L.-V. d'Auteuil, M.J.

REASONS FOR SENTENCE (Orally) [ 1 ] Lieutenant-Colonel McEwen, having accepted and recorded a plea of guilty in respect of the first and only charge on the charge sheet, the court now finds you guilty of this charge. [ 2 ] It is now my duty as the military judge, who is presiding at 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 among the Canadian Forces. That being said, the punishment imposed by any tribunal, military or civilian, should constitute the minimum necessary intervention that is adequate in the particular circumstances. [ 5 ] Here, in this case, the prosecutor and the offender's defence counsel made a joint submission on sentence to be imposed by the court.

They recommended that this court sentence you to a fine in the amount of $1500 in order to meet justice requirements. Although this court is not bound by this joint recommendation, it is generally accepted that the sentencing judge should depart from the joint submission only when there are cogent reasons for doing so.

Cogent reasons mean where the sentence is unfit, unreasonable, would bring the administration of justice into disrepute or be contrary to the public interest. [ 6 ] As the Supreme Court of Canada recognized in Généreux : To maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently. It emphasized that in the particular context of military justice: Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct.

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. [ 7 ] The fundamental purpose of sentencing in a court martial is to ensure respect for the law and maintenance of discipline by imposing 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 offences; 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. 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; 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 a last resort as it was established by the Court Martial Appeal Court and in the Supreme Court of Canada decisions; and e. lastly, 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 failing to secure a 9mm pistol. [ 11 ] Lieutenant-Colonel McEwen was deployed and placed on active service with the Canadian Combat Training Mission Afghanistan at Camp Eggers, Kabul, Afghanistan.

On the afternoon of 11 July 2012, he left his 9mm High Power Browning pistol and three 13 round magazines containing live ammunitions unsecure in a washroom of the LoneStar West building at Camp Eggers. On the afternoon on the same day, an American military, Senior Airman Kattner, found the weapon and the magazines. He brought the pistol to his supervisor, the camp regimental sergeant major. The RSM sent, by two different means, notification to all personnel of a recovered weapon. About 55 minutes after the email was sent, Lieutenant-Colonel McEwen reported to the RSM and confirmed that it was his pistol.

On his own initiative he wrote a statement, dated 16 July 2012, which he provided to the military police on the same day. He also was very cooperative during a cautioned audio-video recorded interview with the military police done on the same day. [ 12 ] This type of offence is directly related to some Canadian Forces members' ethical obligation such as responsibility.

For an officer, as it is for a non-commissioned member, being reliable at all times is more than essential for the accomplishment of any task or mission in an armed force whatever is the function or role we have to perform, especially while securing and handling a weapon. [ 13 ] In arriving in what a court considers a fair and an 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 129(1) of the National Defence Act , which is punishable by dismissal with disgrace from Her Majesty's service or to less punishment; b. secondly, the subjective seriousness of the offence; and having looked at all the evidence put before this court I don't want to make it repetitive, but you clearly recognize that your rank and experience should have told you better in the circumstances.

Unfortunately, you forgot your weapon in the washroom contrary to the custom and practise on the camp and you left it unsecure, and you knew well about this being in the infantry for a long time and also having gone through the function of commanding officer. I don't find it necessary, but I know that you well knew that you should have known better with your experience and your rank level, so I consider this factor, experience, as an aggravating factor. [ 14 ] Also there are mitigating factors that I consider: a. first, there's your guilty plea.

Through the facts presented to this court, the court must consider a guilty plea as a clear genuine sign of remorse and that you are very sincere in your pursuit as a valued asset to the Canadian Forces and it also discloses the fact that you're taking full responsibility for what you did; b. I also have to consider the fact that once you found out that you forgot your weapon, from that time you were very cooperative with authorities who had to investigate the matter;

c. I have also to consider as a mitigating factor the absence of any annotation on the conduct sheet in relation to any offence. There's no indication of the commission of any similar offence, military offence or criminal offence, in relation or not to what happened; d. also I like that fact that you have disclosed so far an outstanding performance in your military service. You are a dedicated Reservist; you have many times Class B and Class C and you deserve great respect for what you have done so far in your military career.

Your record of service and your personnel evaluation reports for the last three years clearly reflect that and I must consider this; e. the fact that you had to face this court martial and I'm sure it already had some deterring effect on you, but also on others; f. the fact that it is an isolated incident, out of character from somebody like you and that there was no other consequence; the weapon was recovered.

My understanding, and I confirmed that with the prosecutor, is that they gave you back the weapon and I don't think that anybody in the chain of command had any issue with you having your weapon back because you carried it after that in order to perform your duties as a senior adviser.

I think there was no issue with that, so I have to consider this also as a mitigating factor; and g. the court also recognizes the fact that as a matter of parity on sentence, and as suggested by the prosecutor, the case law indicates clearly that such an offence calls for a sentence that usually goes from a severe reprimand to a reprimand and a fine or only a fine. In these circumstances the joint submission clearly falls in that range. [ 15 ] The case of Canuel is loud and clear; it cannot be more similar than that and also I looked at the case of Lieutenant-Colonel McManus .

It was not about securing a weapon, it was about handling a weapon, but the sentence was identical, $1500. So first offence and similar circumstances, so I have to consider that in parity coming from the case law. [ 16 ] If I also accept the suggestion by counsel, you have to know 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 it is not insignificant. [ 17 ] So at this stage the court will accept the joint submission made by counsel to sentence you to a fine in the amount of $1500, considering that it is not contrary to the public interest and will not bring the administration of justice into disrepute.

FOR THESE REASONS, THE COURT: [ 18 ] FINDS you guilty of the first and only charge on the charge sheet for an offence under paragraph 129 of the National Defence Act . [ 19 ] SENTENCES you to a fine in the amount of $1500, payable immediately. Counsel: Captain K. Lacharité, Canadian Military Prosecution Services Counsel for Her Majesty the Queen Major S.L. Collins, Directorate of Defence Counsel Services Counsel for Lieutenant-Colonel J.M.C McEwen