R v Monette, 2011 CM 1007

COURT MARTIAL Citation: R v Monette , 2011 CM 1007 Date: 20110908 Docket: 201142 Standing Court Martial Canadian Forces Base Valcartier Courcelette, Quebec, Canada Between: Her Majesty the Queen - and - Private J.F. Monette, Offender Before: Colonel M. Dutil, C.M.J. OFFICIAL ENGLISH TRANSLATION REASONS FOR SENTENCE Orally [ 1 ] Private Monette has pleaded guilty to four counts of having absented himself without leave, charged under

section 90 of the National Defence Act . He has also pleaded guilty to two other counts of having done

an act or engaged in conduct to the prejudice of good order and discipline, contrary to

section 129 of the Act. The Court has accepted and recorded these admissions of guilt and directed a stay of proceedings on the first and seventh charges, which were alternatives to the second and eighth charges. [ 2 ] The facts surrounding this case occurred between 4 and 29 December 2010 at Patrol Base Sperwan Ghar, Kandahar province, in the Islamic Republic of Afghanistan, when Private Monette was posted to a medical station under the command of Health Services. He was a driver of the T-LAV ambulance for the Immediate Response Force (IRF). The unit medical station was under the responsibility of the physician on duty, namely, Lieutenant(

N) Dabo. At the operations level, Private Monette’s immediate supervisor was Sergeant Perron.

[ 3 ] When they arrived on post, Sergeant Perron specified that the Immediate Response Force members had to be present, in uniform, that is, in combat clothing, at the unit medical station at 0730 hours every morning. [ 4 ] In the evening of 4 December 2010, during a medical information session at the unit medical station intended to promote awareness among all UMS members of animal control within the camp and of the risks for troop health, Lieutenant(

N) Dabo and Sergeant Perron had to perform a euthanasia procedure on an animal. Private Monette vehemently expressed his anger towards what was about to be done, using offensive language directed at Lieutenant(

N) Dabo and Sergeant Perron in front of the rest of the troop. He refused to obey when instructed to calm down and listen to the explanations that were going to be provided. Private Monette was beside himself as he left the unit medical station, slamming the door behind him, despite the order Sergeant Perron had issued, during the verbal exchanges, that he remain where he was. [ 5 ] On 22 December 2010, Private Monette did not report to his place of duty at the UMS at 0730 hours as required by Sergeant Perron. He was not in attendance during the orders group held by the sergeant.

Sergeant Perron sent Ordinary Seaman Gaudreau to Private Monette’s quarters to fetch him. Private Monette was found asleep in his bed. He remained absent from his place of duty until 0900 hours that day. [ 6 ] From December 27 to December 29, 2010, Private Monette also failed to report to his place of duty at 0730 hours as required by Sergeant Perron. On 27 December, he remained absent from his place of duty until 0745 hours. On 28 December, he remained absent from his place of duty until 0800 hours. On 29 December, he remained absent from his place of duty until 0737 hours.

On each of these occasions, his supervisors, Sergeant Perron and Master Corporal Thomassin warned him and reminded him of the importance of being at his place of duty. Private Monette submitted that he did not see the point of arriving at the unit medical station at that time of day. He even added that his failure to arrive was not a problem because he was at the FOB or in his quarters.

However, the chain of command needed to ascertain the readiness and attendance of its personnel every morning. [ 7 ] On 29 December 2010, while the UMS’s medical personnel were attending a training session on a delicate medical procedure, Private Monette entered the room, without advising or checking in advance, and turned off the lights in the room. Every day, he had to do a check of the water, and for that purpose had to turn off the lights. Lieutenant(

N) Dabo therefore asked Private Monette whether there was an urgent need to do this check right then. At that point, a vigorous discussion took place between Private Monette and Lieutenant(

N) Dabo. Master-Corporal Thomassin intervened to bring Private Monette in line, since he was being hostile and uncooperative and was speaking to Lieutenant(

N) Dabo in a derogatory manner. Private Monette was addressing Lieutenant(

N) Dabo, asking him, [ translation ] “What’s your problem?” and [ translation ] “Why are you getting after me?”. Master-Corporal Thomassin reminded Private Monette that he should not address an officer in such a way and to show respect. Private Monette continued to argue. This incident took place in the presence of the unit medical station personnel. To put an end to this outburst, Lieutenant(

N) Dabo asked Private Monette to leave the UMS and not return. [ 8 ] On 1 January 2011, Lieutenant(

N) Dabo filed an official request to have Private Monette removed from the team stationed at the UMS at Patrol Base Sperwan Ghar. On 3 January 2011, Private Monette was returned to Role 1 Headquarters at Kandahar Airfield. Ultimately, on 24 January 2011, he was repatriated back to Canada. [ 9 ] Counsel in attendance presented a joint submission regarding the sentence that this Court should impose for this military member, who joined the Regular Force in June 2007 as an infantryman with 1 Battalion, Royal 22e Régiment.

Counsel recommends that the Court impose a sentence that includes a punishment of seven days’ detention. The Court is not bound by this recommendation, but cannot disregard it unless the Court deems it to be inadequate, unreasonable or contrary to public order, or if the Court finds that it would bring the administration of justice into disrepute, for example if it were outside the range of sentences previously imposed for similar offences.

Counsel submits to the Court that the proposed sentence is within the acceptable spectrum consistent with the recent case law. [ 10 ] The sentence imposed by a court, be it civilian or military, must be adapted to the individual offender and constitute the minimum necessary intervention, since moderation is the bedrock principle of the modern doctrine of sentencing in Canada. [ 11 ] In imposing an appropriate sentence on an accused for the wrongful acts that he or she has committed in relation to the offences of which he or she is guilty, the Court must aim for certain objectives in light of the applicable principles, which vary slightly from case to case.

The fundamental purpose of sentencing in a court martial is to maintain military discipline and build respect for the law by imposing fair punishments having 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, in order to return them to their environment in the Canadian Forces or to civilian life; and (

e) to promote a sense of responsibility in military members who are offenders. [ 12 ] The sentence must also take the following principles into account. It must be proportionate to the gravity of the offence, the previous character of the offender and his or her degree of responsibility. The sentence should also take into consideration the principle of parity in sentencing, that is, a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

Before considering depriving an offender of liberty, the Court has a duty to consider whether less restrictive sanctions may be appropriate in the circumstances. Last, all sentences must be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender and to account for any direct or indirect consequences of the verdict and the sentence on the offender. [ 13 ] Counsel’s joint submission must be consistent with the abovementioned objectives and principles which are appropriate in the case; otherwise, the Court has no choice but to reject it.

In R v Lamoureux ( 2011 CM 1006 , 23 August 2011), I stressed the importance that must be given to absolute respect for authority and to obedience to orders, particularly in the operational environment, as set out in R v Billard ( 2007 CM 4019 , 6 July 2007), a decision affirmed by the Court Martial Appeal Court in a unanimous decision penned by the Honourable Chief Justice Blanchard ( 2008 CMAC 4 , 25 April 2008).

Also applicable are the principles set out by my colleague Justice Perron in Billiard and the words of Chief Justice Blanchard summarizing the importance of Canadian military members’ duty of obedience and the importance of the principles which must guide the military courts in imposing an appropriate sentence when this duty is breached.

Even if the offences before this Court are related to absences without leave and acts or conduct to the prejudice of good order and discipline, the acts held against Private Monette clearly show a glaring disregard for the values of obedience to the instructions of one’s superiors and a scornful, unjustifiable attitude towards a superior officer. [ 14 ] Private Monette had no reason to act as he did. His attitude exemplifies what a military member should never do. [ 15 ] In this case, the Court considers the following circumstances to be aggravating: (

a) These offences are objectively serious. Every person convicted of

an act or conduct to the prejudice of good order and discipline is liable to a maximum punishment of dismissal with disgrace from Her Majesty’s service, whereas every person convicted of absence without leave is liable to imprisonment for less than two years. (

b) He was repeatedly absent without leave, despite his superiors’ reiterating the importance he should place on being at his place of duty, and adopted an impertinent, even insolent attitude in that regard. This conduct was premeditated. (

c) He conducted himself inappropriately towards Lieutenant(

N) Dabo on several occasions. Not only did Private Monette show a lack of respect towards that officer, he did so in the presence of his co-workers. This situation undermines troop cohesion and morale and constitutes a grave and elementary violation of the respect owed by every non-commissioned member, not only to officers, but to their entire chain of command, from mere privates all the way up to commanders. (

d) Last, as in Lamoureux , the offences at issue were committed in the Afghan operational theatre, where danger, stress and fatigue are exacerbated by a multitude of factors often beyond the control of the soldiers risking their lives to carry out their duties. There can be no doubt that his conduct and stubbornness had a direct impact on his co-workers, who all had better things to do than to be subjected to Private Monette’s intemperate language and unrestrained conduct. [ 16 ] The Court nevertheless considers that the following factors have a mitigating effect on the sentence:

(

a) Private Monette’s admissions of guilt. In the circumstances, these admissions demonstrate that the offender accepts his full responsibility in this matter. (

b) The absence of a criminal record or conduct sheet. (

c) Private Monette’s family and financial situation. He lives with his spouse, and they are parents to a little girl who is not yet one year old. He is 27 years old and has barely completed 4 years of service in the Regular Force. (

d) Private Monette’s early repatriation from Afghanistan, his ensuing financial losses of approximately $18,000 and the counselling and probation imposed by his chain of command for the actions at issue before this Court are serious mitigating grounds in respect of the sentence. It seems that Private Monette has properly fulfilled this administrative measure, which has run its course. Furthermore, the Court takes into consideration that, as a result of his repatriation in connection with his improper conduct, he was deprived of his campaign medal. This consequence was surely of particular importance in Private Monette’s eyes. (

e) The time elapsed since the offences were committed, as set out in the joint submission of facts, which states that the charges initially laid in January 2011 were withdrawn in May 2011, and that new charges were ultimately laid in August 2011 in respect of those same facts, for legal reasons. [ 17 ] It is clear, in this case, that the sentence must focus on the objectives of deterrence and rehabilitation, denunciation of the behaviour and punishment of the offender. [ 18 ] As I noted in Lamoureux , I would add that recent case law appears to favour a custodial sentence for this type of offence where the offence was committed in an operational theatre.

A punishment of detention imposed on a military member is particularly appropriate since it intends and seeks to rehabilitate service detainees and re-instill in them the habit of obedience in a structured military framework. While I agree with counsel for the defence that Private Monette deserves a chance, he must realize—and here I address Private Monette—that this joint submission by counsel proves to be the minimum sentence that the Court can impose in the circumstances.

For these reasons, the Court [ 19 ] CONVICTS the offender on the second, third, fourth, fifth, sixth and eighth charges; [ 20 ] UPHOLDS the stay of proceedings on the first and seventh charges; AND [ 21 ] SENTENCES the offender, Private Monette, to seven days’ detention. Counsel: Major G. Roy, Canadian Military Prosecution Service Captain D. Kandolo, Canadian Military Prosecution Service Counsel for Her Majesty the Queen

Major C.E. Thomas, Defence Counsel Services Captain H. Bernatchez, Defence Counsel Services Counsel for Private J.F. Monette