Her Majesty the Queen - v. -, 2010 CM 3008

COURT MARTIAL Citation : R. v. L’Heureux , 2010 CM 3008 Date: 20100504 Docket: 200955 Standing Court Martial Régiment de Maisonneuve Montréal, Quebec, Canada Between: Her Majesty the Queen - and - Corporal J. L'Heureux, Offender Before: Lieutenant-Colonel L.-V. d’Auteuil, M.J.

OFFICIAL ENGLISH TRANSLATION REASONS FOR SENTENCING (Rendered orally) [ 1 ] Corporal L’Heureux, the Court Martial having accepted and recorded your admission of guilt on the first and only count, the Court now finds you guilty of this count. [ 2 ] As the military judge presiding at this Standing Court Martial, it now falls to me to determine the sentence. [ 3 ] In the special context of an armed force, the military justice system constitutes the ultimate means of enforcing discipline, which is a fundamental element of military activity in the Canadian Forces.

The purpose of this system is to prevent misconduct, or, in a more positive way, to promote good conduct. It is through discipline that an armed force ensures that its members perform their missions successfully, confidently and reliably. The military justice system 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 courts is to allow the Canadian Forces to deal with matters that pertain to the Code of Service Discipline and the maintenance of the effectiveness and morale of the troops. [ 5 ] That said, the punishment imposed by any court, military or civilian, should constitute the minimum necessary intervention that is adequate in the particular circumstances of the case. It also goes directly to the duty imposed on the Court to impose a sentence commensurate with the gravity of the offence and the previous character of the offender, as stated at subparagraph 112.48(2)(

b) of the QR&O. [ 6 ] In this case, the prosecution and defence counsel have presented a joint submission on sentencing. They recommend that the Court sentence you to a $1000 fine. The Court Martial is not bound by this recommendation. However, it is well established in case law that there must be compelling reasons for the Court to disregard it.

It is also generally recognized that the Court should accept the recommendation unless doing so would be contrary to the public interest or bring the administration of justice into disrepute. [ 7 ] The Court has taken into consideration the respective recommendations of counsel in light of the relevant facts set out in the statement of circumstances.

It has also considered this recommendation in light of the relevant sentencing principles, including those set out in sections 718 , 718.1 and 718.2 of the Criminal Code , to the extent that these principles are not incompatible with the sentencing regime provided under the National Defence Act .

These principles are as follows: First, the protection of the public, which includes the interests of the Canadian Forces in this case; Second, the punishment of the offender; Third, the deterrent effect of the punishment, not only on the offender, but also upon others who might be tempted to commit such offences; Fourth, the separation, where necessary, of offenders from society, including from members of the Canadian Forces; Fifth, the imposition of sentences similar to those imposed on offenders who commit similar offences in similar circumstances; and, Sixth, the rehabilitation and reintegration of the offender.

The Court has also taken into account the submissions made by counsel, the case law they filed and the documents they introduced in evidence before this Court. [ 8 ] The Court agrees with counsel for the prosecution that the need to protect the public requires the imposition of a sentence that emphasizes first general and specific deterrence, then denunciation.

It is important to remember that the principle of general deterrence means that the sentence imposed should deter not only the offender from re-offending, but also others in similar situations from engaging in the same prohibited conduct. [ 9 ] Here, the Court is dealing with an offence of

an act to the prejudice of good order and discipline. It is a purely disciplinary offence that is serious in a military context, but the Court will impose what it considers to be the minimum punishment applicable in the circumstances. [ 10 ] The type of offence that you have committed refers to the principle of responsibility and integrity that all members of the military must observe in all circumstances. To ensure the success of a mission, an armed force must be able to count on a crucial element: the reliability and trustworthiness of soldiers, especially military police officers.

[ 11 ] In arriving at what it considers to be a fair and appropriate sentence, the Court has also considered the following aggravating and mitigating factors. Firstly, the objective seriousness of the offence. You have been found guilty of an offence under

section 129 of the National Defence Act , which provides for a maximum sentence of dismissal with disgrace from Her Majesty’s service. Secondly, the subjective seriousness of the offence. The context in which the offence was committed involved a member of the military. Even though he was an Afghan soldier, he was a member in the theatre of operations. According to the statement of circumstances, a dog had been given to the station.

At that point, an Afghan with an AK-47 close at hand made a hand gesture that meant or that you interpreted to mean that he wanted to kill the dog, which had bitten the commanding officer of the police station in the past. When you saw that gesture, you drew your pistol. You were in the theatre of operations then, you were aware of the Rules of Engagement governing the use of force, and, in spite of this, you committed that act. Also in terms of aggravating factors, there is the fact that you are a military police officer.

In fact, the prosecution pointed out that your profession in this case is of even greater importance. It is true that, in addition to being a member, you receive advanced training on the use of your weapon and situations. Lastly, under these circumstances, I must also consider your conduct sheet, which refers to an incident, if I am not mistaken, that occurred approximately one month earlier, in the same place. It is an offence of a different nature: at that time, you used insulting language to a superior officer, as described in

section 85, but it was again a purely military offence, an offence under the Code of Service Discipline . It therefore also constitutes an aggravating factor that I must take into account. [ 12 ] There are also the following mitigating factors: a. Your plea of guilty. By pleading guilty, you show that you feel remorse and are sincere in your intention to remain a valid asset to the Canadian Forces and to Canadian society in general. b.

In addition, the evidence submitted to the Court, including the admissions that were accepted by the prosecution, shows that, following your act, you immediately cooperated with investigators and handed over your weapon right away. You realized the gravity of your act immediately after the incident, and this is a mitigating factor. c. There is also your age: if I am not mistaken, you are 21 years old. From the point of view of your age and career, I think that the evidence clearly shows your potential.

The comments I received from the chain of command are that you are a good military police officer, and the reports submitted in evidence, be it an annual performance report or a report on what you recently accomplished on the Haiti mission, clearly indicate that you have excellent potential as a military police officer. This is also a mitigating factor in these circumstances. d.

There is also the fact that you had to face this Court Martial, which was announced and accessible to the public and which took place in the presence of your colleagues, of certain members, has no doubt had a deterrent effect on you and on them. The message is that the kind of conduct that you displayed will not be tolerated in any way and will be dealt with accordingly. e. There is also the fact that you apologized to the person involved in the incident.

I think that this further showed your remorse for what had happened and the fact that it was obviously a spontaneous and isolated act. [ 13 ] A review of the case law of military courts regarding the imposition of a fine for offences of a similar nature in similar circumstances leads me to conclude that the suggestion made is reasonable in these circumstances. A just and equitable sentence should take into account the seriousness of the offence and the offender’s degree of responsibility in the particular circumstances of the case.

Accordingly, the Court will accept the recommendation made by counsel to sentence you to a $1000 fine, considering that this sentence is not contrary to the public interest and would not bring the administration of justice into disrepute.

[ 14 ] Corporal L’Heureux, please stand. Corporal L’Heureux, the Court sentences you to a $1000 fine. The fine is to be paid in 10 consecutive monthly instalments of $100, beginning on 1 June 2010. If, for whatever reason, you are released from the Canadian Forces before the fine is paid in full, the then outstanding amount is due and payable prior to your release. Counsel: Major J. Caron, Canadian Military Prosecution Service Counsel for Her Majesty the Queen Marie-Laurence Lenfant, 460 Saint-Gabriel Street, Montréal, Quebec, H2Y 2Z9 Defence counsel for Corporal J. L’Heureux