R.v. Borg, 2015 CM 4014

COURT MARTIAL Citation: R.v. Borg , 2015 CM 4014 Date: 20150812 Docket : 201448 General Court Martial 5 Canadian Division Support Base Gagetown Gagetown, New Brunswick, Canada Between: Her Majesty the Queen - and - Corporal (Retired) P.A. Borg, Offender Before: Commander J.B.M. Pelletier, M.J. REASONS FOR SENTENCE (Orally) Declaration of guilt [ 1 ] Corporal (Retired) Borg, having accepted and recorded your plea of guilty in respect of the one charge remaining on the charge sheet, the court now finds you guilty of that charge under

section 90 of the National Defence Act ( NDA) for having absented yourself without authority. Matters considered [ 2 ] It is now my duty as the military judge presiding at this General Court Martial to determine the sentence. 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. I have as well considered the facts relevant to this case as disclosed in the statement of circumstances and the material submitted during the course

of the sentencing hearing. I have also considered the submissions of counsel, both for the prosecution and for the defence. Purpose of the Military Justice System [ 3 ] The military justice system constitutes the ultimate means to enforce discipline in the Canadian Armed Forces, and a fundamental element of the military activity. The purpose of this system is the promotion of good conduct by allowing the proper sanction of misconduct. It is through discipline that an armed force ensures that its members will accomplish successful missions in a trusting and reliable manner.

In doing so, it also ensures that the public interest in promoting respect for the laws of Canada is served by punishment of persons subject to the Code of Service Discipline. Objectives of sentencing [ 4 ] The fundamental purpose of sentencing at a court martial is to ensure respect for the law and the maintenance of military discipline by imposing sanctions that have one or more of the following objectives: (

a) to protect the public, which includes the Canadian Armed 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. Principles applicable to sentences [ 5 ] When imposing sentences, a sentencing judge 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; and (

e) finally, all sentences should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

[ 6 ] That being said, any punishment imposed by tribunals, military or civilian, should constitute the minimum necessary intervention that is adequate in the particular circumstances. For a court martial, this means imposing a sentence composed of the minimum punishment or combination of punishments necessary to maintain discipline. [ 7 ] The Queen’s Regulations and Orders for the Canadian Forces (QR&

O) requires the judge imposing a sentence at a court martial to consider any indirect consequence of the finding or the sentence, and “impose a sentence commensurate with the gravity of the offence and the previous character of the offender.” Any sentence imposed must be adapted to the individual offender and the offence he or she has committed. The offender [ 8 ] There has been no evidence presented by the defence on the past performance or current occupation of the offender.

From the Personnel Record Résumé, at Exhibit 4, tendered by the prosecution in application of QR&O 112.51(3), the court can see that the offender is 32 years old and was recently released from the Canadian Armed Forces under Item 5(

f) to the table at QR&O 15.01. He had served in the Armoured Corps since November 2001, including a first stint with the Regular Force between 2001 and 2004, then in the Reserve Force until 2012, when he rejoined the Regular Force until his recent release. He served in Bosnia in 2003 - 2004. He is single and has no children. The offence [ 9 ] In arriving at evaluating what would be a fair and appropriate sentence, the court has considered the objective seriousness of the offence as illustrated by the maximum punishment that the court could impose. Offences under

section 90 of the National Defence Act are punishable by imprisonment for less than two years or less punishment. [ 10 ] The offence at

section 90 of the National Defence Act sanctions absence from a place of duty by persons subject to the Code of Service Discipline. The offence underlines the importance of being and remaining at one’s place of duty in order to protect operational effectiveness and, to an extent, promote military discipline. Discipline is that quality that every member of the military must have that allows him or her to put the interests of Canada and of the service before personal interests.

Discipline is developed and encouraged through instruction, training and practice, but it must also be internalized in the form of self-discipline. This includes the self-discipline required to show up and remain at one’s place of duty for as long as required. [ 11 ] The specific circumstances of the offence in this case are as follows: (

a) The events relating to the charge occurred in the late afternoon of Friday 6 June 2014, when Corporal Borg was working at the canteen in the Royal Canadian Armoured Corps School under the supervision of Master Corporal Thomas, along with eight other colleagues, including two who were of a lower rank. (

b) At approximately 1630 hours, Master Corporal Thomas was about to hold a meeting for the canteen staff when Corporal Borg stated that “He was done, he had enough and was leaving.” Master Corporal Thomas clearly explained to Corporal Borg that he was not authorized to leave at this time. A discussion ensued during which Corporal Borg reiterated numerous times that he was leaving and Master Corporal Thomas repeatedly, and calmly, explained that he had to stay until other orders were given. (

c) In contravention of Master Corporal Thomas’ order, Corporal Borg left at approximately 1705 hours and stated, as he was leaving, “No, fuck it, I am out of here, you can walk with me, but I am not staying in this fucking place.” (

d) Corporal Borg confirmed at 1746 hours that he was home. He did not return to duty that day and was arrested on Monday morning, 9 June 2014, by the military police while attending the base hospital. Mitigating factors

[ 12 ] As far as the offender is concerned, the court has considered the following mitigating factors: (

a) First and foremost, the offender’s guilty plea which the court considers as a genuine sign of remorse and an indication that the offender is taking full responsibility for what he has done, in the public forum of this court martial, where he appeared as a civilian. (

b) Second, the fact that the offender has no previous record and is a first-time offender with, at only 32 years of age, potential to make a positive contribution to Canadian society now that he has left the Canadian Armed Forces. (

c) Finally, the offender’s service with the Canadian Armed Forces for over thirteen years, in the Regular and Reserve Force, including a deployment overseas. Aggravating factors [ 13 ] The offence of absence without leave may be committed in a broad array of circumstances, as illustrated in the case law submitted by counsel. On the lower end of the scale, a person may be a few minutes late arriving for a specific duty or parade.

At the higher end, a person may design a sophisticated scheme to avoid duty for a period of several hours or days. [ 14 ] There is insufficient evidence to allow the court to find that the offender was away from his duty at the canteen throughout the weekend on 7 - 8 June 2014 and to consider this length of absence as an aggravating factor. Also, there is no evidence of impact that the offender’s absence may have had on the operations within his unit at the time. [ 15 ] Yet, I am of the view that the circumstances of the absence here are not the most minor.

Even if the prosecution has withdrawn an alternate charge of disobedience, it remains that the circumstances of Corporal Borg’s departure from his place of duty on 6 June 2014 are relevant to the determination of the subjective gravity of the offence of absence without authority. I find that leaving one’s duty in blatant disregard of the immediate direction of a superior to stay put constitutes a challenge to that superior’s authority and, indeed, to the authority of the entire chain of command.

Doing so in a manner which would likely be known by six peers and two subordinates also serving as canteen staff is aggravating, especially on the part of a senior corporal with over twelve years of experience at the time of the offence. I am of the view that the offence committed here constitutes a direct attack on discipline at the unit. Objectives of sentencing to be emphasized in this case [ 16 ] These circumstances require that, in sentencing the offender in this case, the court place the focus on the objectives of denunciation and general deterrence.

The joint submission of counsel and its effect [ 17 ] The prosecutor and defence counsel made a joint submission on the sentence to be imposed by the court.

They both recommended that this court impose a sentence comprised of the punishment of a Reprimand and a Fine of $200 in order to meet justice requirements. [ 18 ] Although this court is not bound by this joint recommendation, it has been determined by the Court Martial Appeal Court of Canada in R. v Taylor, 2008 CMAC 1 at paragraph 21 that the sentencing judge at a court martial cannot depart from a joint submission unless 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. [ 19 ] In the course of the sentencing hearing, the prosecution and defence counsel presented the court with legal precedents which may be considered as useful to appreciate the range of punishment imposed by military tribunals in previous circumstances, allowing me to evaluate not only what a proper sentence might be but also to assist in my obligation to determine if the proposed sentence is unfit.

[ 20 ] That being said, every case is different and none of the precedents presented to me was exactly on point as to the element of immediate disobedience in the presence of a superior, which formed an important circumstance of this case. At the same time, none of those cases presented to me involved the imposition of the punishment of Reprimand. Based on the submissions of both counsel, I am confident that the Reprimand being suggested here is aimed at properly sanctioning the conduct of the offender who disregarded the specific direction from his superior in the presence of other members of his unit.

This punishment, combined with a fine which has a personal impact on the offender, can meet the objectives of denunciation and general deterrence.

The fact that the sentence is imposed in a public trial in the presence of several members of the military community indicates that the offender is not getting away from his responsibility, and contributes in meeting the objectives of denouncing the behavior and deterring others from engaging in the same kind of conduct. [ 21 ] Considering the nature of the offence, the circumstances in which it was committed, the applicable sentencing principles and the aggravating and mitigating factors mentioned previously, I am of the view that the punishments of a Reprimand and a Fine of $200 dollars jointly proposed by counsel is within the range of appropriate sentences in this case.

The joint submission made by counsel is not contrary to the public interest and will not bring the administration of justice into disrepute. The court will, therefore, accept it. [ 22 ] Corporal (Retired) Borg, the circumstances of the charge you pleaded guilty to reveal a behaviour that is incompatible with discipline, an essential condition of service in the Canadian Armed Forces. You have no doubt accomplished many good things in the Canadian Armed Forces in your years of service.

Despite the offence you have committed, you can be certain that the values of service and respect you have learned, and by and large respected during your time in the military will serve you well in civilian streets. I hope they will allow you to move on as a productive and law-abiding member of Canadian society. FOR THESE REASONS, THE COURT: [ 23 ] SENTENCES you to a reprimand and a fine of $200, payable forthwith. Counsel: The Director of Military Prosecutions as represented by Colonel B. MacGregor Major S. Collins, Counsel for Corporal (Retired) Borg