R v Canuel, 2012 CM 4014

COURT MARTIAL Citation: R v Canuel , 2012 CM 4014 Date: 20120717 Docket: 201232 Standing Court Martial Lieutenant-Colonel George Taylor Denison III Armoury Toronto, Ontario, Canada Between: Her Majesty the Queen - and - Commander H.G. Canuel, Offender Before: Lieutenant-Colonel J-G Perron, M.J. OFFICIAL ENGLISH TRANSLATION REASONS FOR SENTENCE (Orally) [ 1 ] Commander Canuel, having accepted and recorded your plea of guilty on the first count, I now find you guilty of this count, namely, failing to secure your 9-mm pistol when you were deployed to Camp Eggers in Kabul, Afghanistan.

I must now impose an appropriate punishment, which must be the minimum punishment required in the circumstances of the case to ensure that discipline is served. [ 2 ] The Court Martial Appeal Court of Canada (CMAC) tells us at paragraphs 30 to 33 of its decision in Private R.J.

Tupper v R , 2009 CMAC 5 , that a military judge must consider the fundamental purposes and goals of sentencing set out at sections 718 and following of the Criminal Code . [1] The sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender” and should be “similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. [ 3 ]

Section 718 of the Criminal Code states that the fundamental purpose of sentencing is to contribute to respect for the law

and the maintenance of a just, peaceful and safe society 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 acknowledgement of the harm done to victims and to the community. [ 4 ] Counsel for Her Majesty and your counsel have submitted a joint sentencing submission and recommend imposing a fine of $1,500. The final decision in arriving at an adequate sentence lies with the judge, who has the right to reject the joint submission by counsel. However, I must accept the joint submission unless it is found to be inadequate or unreasonable, contrary to public order or such that it would bring the administration of justice into disrepute.

To determine what constitutes the appropriate sentence in this case, I took into account the circumstances surrounding the commission of the offence as revealed in the statement of circumstances, which you have acknowledged to be true. I also considered the evidence that was filed, the case law and submissions by counsel. I analyzed these various factors in light of the objectives and principles applicable to sentencing. [ 5 ] In December 2011, Commander Canuel was deployed to Camp Eggers in Kabul, Afghanistan.

Canadian Forces members were required to carry a 9-mm pistol and a magazine containing live ammunition at all times. When the pistol was not on their person, Canadian Forces members were required to keep it in a secured place. Early in the morning of 5 December 2011, Commander Canuel left his 9-mm pistol, serial number 7T4159, its case and a magazine containing live ammunition in a bathroom at Camp Eggers. [ 6 ] An American serviceman found the pistol in the bathroom.

After looking around the bathroom and in the hallway to see if someone had just left the area, and after waiting a certain amount of time, the serviceman realized that no one was coming back to look for the pistol. He therefore left with the pistol, case and magazine.

An email was sent to all U.S. military personnel in the Afghanistan Public Protection Force Advisory Group, stating that a pistol with the serial number 7T4159 had been found in the bathroom and that everyone should bear in mind the importance of weapons safety. [ 7 ] Realizing that this was not an American weapon but one possibly belonging to the Canadians, the U.S. authorities handed over the pistol, case and magazine to a chief petty officer 1st class in the Canadian Forces. This chief petty officer 1st class recognized the case as one belonging to Commander Canuel.

He went to Commander Canuel’s post and asked him if he had his weapon on him. Commander Canuel checked his hip and realized that his weapon was not there. The chief petty officer first class gave the pistol, case and magazine back to Commander Canuel, not wanting him to be left unarmed. [ 8 ] Having summarized the main facts of this case, I will now concentrate on sentencing. Therefore, in considering what sentence would be appropriate, I took into consideration the aggravating factors and mitigating factors that follow. I will begin with the factors mitigating the sentence:

a) You have admitted your guilt. An admission of guilt usually shows certain remorse. Moreover, this plea allows the Crown to save large sums of money and makes it unnecessary to call numerous witnesses; and

b) The two performance reports filed by your counsel, namely, the annual report for 2010–2011, Exhibit 7, and the performance report from your deployment to Afghanistan in 2011–2012, Exhibit 8, contain nothing but praise and recommend an immediate promotion. Therefore, it would appear that this offence in no way reflects your usual performance and conduct.

[ 9 ] I will now discuss the aggravating factors:

a) You have a conduct sheet, but the offence in it dates back to 2006 and has no connection with the offence before this Court. This aggravating factor therefore carries little weight;

b) The nature of the offence and the punishment provided for by Parliament. The maximum punishment for this offence is dismissal with disgrace from Her Majesty’s service. This is an objectively serious offence. Firearms safety is important at all times, particularly during a deployment in a theatre of operations;

c) Counsel for Her Majesty informed the Court that such charges are common in Afghanistan; that is to say, many Canadian Forces members have been negligent in this regard. He provided a few examples, namely, records of disciplinary proceedings, which give an overview of the charges brought and the sentences passed on

summary conviction in Afghanistan. Your counsel was given an opportunity to comment on this subject but did not do so; and

d) You were a commander at the time of the offence and had 25 years of experience in the Canadian Forces. You had already commanded a ship. You were fully aware of the importance of weapons safety. Your sentence should reflect this level of awareness and responsibility. [ 10 ] Commander Canuel, please stand up.

Having closely examined the parties’ joint submission, I am of the opinion that, given the particular facts of this case, it adequately incorporates the sentencing principles and that the sentence is just and adequate and is the lightest possible sentence to ensure protection of the public and maintenance of discipline in the circumstances. Deterrence of the alleged conduct is considered to be the most important sentencing principle. FOR THESE REASONS, THE COURT: [ 11 ] FINDS you guilty of the first charge. AND [ 12 ] SENTENCES Commander Canuel to a fine of $1,500 . This fine must be paid by August 31, 2012.

Counsel: Major E. Carrier, Canadian Military Prosecution Service Counsel for Her Majesty the Queen Major E. Thomas, Defence Counsel Services Counsel for Commander H.G. Canuel