R v Clark, 2011 CM 4004

COURT MARTIAL Citation: R v Clark , 2011 CM 4004 Date: 20110224 Docket: 201065 Standing Court Martial Canadian Forces Base Petawawa Petawawa, Ontario, Canada Between: Her Majesty the Queen - and - Captain L.M. Clark, Offender Before: Lieutenant-Colonel J-G Perron, M.J. REASONS FOR SENTENCING (Orally) [ 1 ] Captain Clark, the court, at the conclusion of a complete trial, has found you guilty of having disobeyed a lawful command of a superior officer and of lying, thus prejudicing good order and discipline.

You told Warrant Officer Galway his ranking on the 2 MP Unit merit board contrary to the order of Major Flight. You told Master Warrant Officer Bélanger you had not revealed to Warrant Officer Galway his ranking on the 2 MP Unit merit board when in fact you had done so. You also told Master Warrant Officer Bélanger that you had not shown Warrant Officer Galway a copy of his draft Personnel Evaluation Report (PER) when in fact you had done so.

The court must now impose a fit and just sentence. [ 2 ] The principles of sentencing which are common to both courts martial and civilian criminal trials in Canada have been expressed in various ways. Generally, they are founded on the need to protect the public, and the public, of course, includes the Canadian Forces. [ 3 ] The primary principles are the principles of deterrence that includes specific deterrence in the sense of deterrent effect on you personally, as well as general deterrence; that is, deterrence for others who might be tempted to commit similar offences.

The principles also include the principle of denunciation of the conduct and last, but not least, the principle of reformation and rehabilitation of the

offender. The court must determine if protection of the public would best be served by deterrence, rehabilitation, denunciation, or a combination of those factors. [ 4 ] The court has also considered the guidance set out in sections 718 to 718.2 of the Criminal Code of Canada . The fundamental purpose of sentencing, as set out in

section 718 , is to contribute to respect for the law and the maintenance of a just and peaceful society by the imposition of just sanctions that have one or more of the following objectives: the denunciation of unlawful conduct; deterring the offender and other persons from committing offences; separating the offender from society where necessary; assisting in rehabilitating offenders; providing reparations for harm done to victims or to the community and the promotion of a sense of responsibility in offenders; and acknowledgement of the harm done to victims and to the community. [ 5 ] Although I have considered the principles and purposes set out in sections 718 to 718.2 of the Criminal Code of Canada and have taken them into consideration when I considered the joint submission on sentencing, I am mindful that the ultimate aim of sentencing in the court martial process is the restoration of discipline in the offender and in military society.

The court must impose a sentence that should be the minimum necessary sentence to maintain discipline. [ 6 ] The prosecution and your defence counsel have jointly proposed a sentence of a reprimand and a fine in the amount of $1,000 to be paid by four monthly instalments of $250 on the 15th day of the month. [ 7 ] The Court Martial Appeal Court has stated clearly that a sentencing judge should not depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute or unless the sentence is otherwise not in the public interest.

I agree with the prosecutor that the principle of general deterrence is the most important sentencing principle in the present case. [ 8 ] I will firstly address the aggravating factors of this case. The offence of disobeying a lawful command of a superior officer is objectively one of the most serious offences under the Code of Service Discipline since the maximum sentence is imprisonment for life.

An act to the prejudice of good order and discipline is also an objectively serious offence since its maximum sentence is dismissal with disgrace from Her Majesty's service. [ 9 ] You were the officer commanding 2 MP Platoon at the time of the offences. 2 MP Platoon is a sub-unit of 2 MP Unit. You disobeyed an order from your Commanding Officer (CO) and you lied to the unit Sergeant Major.

An officer is expected to promote the welfare, efficiency and good discipline of all subordinates. [1] You may only accomplish this duty by being an example to your subordinates. [ 10 ] I will now deal with the evidence in mitigation of sentence. You do not have a conduct sheet; therefore, you are a first-time offender. You were born in March 1982. You served two years in the Primary Reserve from 2005 to 2007. You enrolled in the Regular Force as an Officer Cadet in August 2007. You graduated from the Canadian Forces Military Police Academy in August 2009. You were promoted to your present rank in August 2009.

You assumed command of 2 MP Platoon in September 2009. As such, you were 28 years old at the time of the offences but had less than one year experience as a qualified military police officer. Your inexperience is considered a mitigating factor. [ 11 ] I have reviewed the Personnel Development Review at Exhibit 8, the letter from Major Garrard at Exhibit 9, the character reference at Exhibit 10, and the testimony of Major Pelechaty-Earl. I have also considered the testimony of Major Flight and Master Warrant Officer Bélanger concerning your potential and your performance.

They all describe a young officer that has much to offer. Although you had the impending disciplinary proceedings hanging over your head, you have persevered in maintaining a high standard of performance. [ 12 ] It would appear those actions were out of character for you. I will let the appropriate authorities and your chain of command decide if those actions can be described as totally out of character. You now have an opportunity to correct your past unlawful conduct and embark on a rewarding career in the Canadian Forces.

How well you succeed is all up to you. [ 13 ] Your defence counsel has argued the nine months' post-charge delay should be considered in mitigation. I have no evidence before me that suggests I should give much weight to this period of time as a mitigating factor. As such, I will not. [ 14 ] Captain Clark, stand up. I sincerely hope that you have learned from these mistakes and that you will move on and become a

valued officer, should your chain of command believe that you do possess the attributes we seek in an officer. [ 15 ] After reviewing the totality of the evidence, the case law, and the representations made by the prosecutor and your defence counsel, I have come to the conclusion that the proposed sentence would not bring the administration of justice into disrepute and that the proposed sentence is in the public interest. Therefore, I agree with the joint submission of the prosecutor and of your defence counsel. FOR THESE REASONS, THE COURT: [ 16 ] SENTENCES you to a reprimand and a fine in the amount of $1,000.

The fine shall be paid in four monthly instalments of $250 commencing on the 15th day of March 2011. Counsel: Major T. Tamburro, Canadian Military Prosecution Services Counsel for Her Majesty the Queen Captain R.D. Kerr, Canadian Military Prosecution Services Counsel for Her Majesty the Queen Major C.E. Thomas, Directorate Defence Counsel Services Counsel for Captain Lisa Marie Clark