R v Massicotte, 2012 CM 4011

COURT MARTIAL Citation: R v Massicotte , 2012 CM 4011 Date: 20120530 Docket: 201162 Standing Court Martial Her Majesty’s Canadian Ship RADISSON Trois-Rivières, Quebec, Canada Between: Her Majesty the Queen - and - Ex-Acting Sub-Lieutenant C. Massicotte, Offender Before: Lieutenant-Colonel J-G Perron, M.J.

OFFICIAL ENGLISH TRANSLATION REASONS FOR SENTENCE Orally [ 1 ] Ex-Acting Sub-Lieutenant Massicotte, having accepted and recorded your plea of guilty to two charges, I now find you guilty of both these charges, namely, stealing a computer belonging to the Canadian Forces and an iPod device belonging to a fellow member. I must now impose an appropriate sentence, which must be the minimum required sentence in the circumstances of the case to serve the purposes of discipline. [ 2 ] The Court Martial Appeal Court of Canada tells us at paragraphs 30 to 33 of its decision in R v R.J.

Tupper , 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 of Canada (Cr.C.). The sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender” (see

section 718.1 of the Cr.C.) and “similar to sentences imposed on similar offenders for similar offences committed in similar circumstances” ( paragraph 718.2 (

b) of the Cr.C.). An offender should not be deprived of liberty if less restrictive sanctions other than imprisonment may be appropriate in the circumstances.

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; (

c) 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. [ 3 ] The sentencing provisions of the Criminal Code , sections 718 to 718.2 , provide for an individualized sentencing process in which the court must take into account not only the circumstances of the offence, but also the specific circumstances of the offender (see R v Angelillo , 2006 SCC 55 , at paragraph 22 ). The principle of proportionality is at the heart of any sentencing.

The Supreme Court of Canada writes at paragraph 41 of R v Nasogaluak , 2010 SCC 6 , that the principle of proportionality means that a sentence may not exceed what is just and appropriate given the moral blameworthiness of the offender and the gravity of the offence. [ 4 ] The court must also impose a sentence that should be the minimum necessary sentence to maintain discipline. The ultimate aim of sentencing is the restoration of discipline in the offender and in military society. [ 5 ] The prosecution submits that the minimum sentence is a reprimand and a fine in the amount of $500 to $1,000.

Your counsel suggests that a fine of $200 is appropriate in the specific circumstances of this case. The final decision in sentence determination lies with the judge. 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 the submissions by counsel.

I analyzed these various factors in light of the objectives and principles applicable in sentencing. [ 6 ] At the time of the offences, ex-Acting Sub-Lieutenant Massicotte was at CFB Esquimalt as part of a Class B contract for Operation PODIUM. On 17 October 2009, he went to clean some housing units. While he was cleaning Building 1019, he took a laptop computer belonging to the Canadian Forces and an iPod touch device he found in a room occupied by a member. The laptop had been assigned to this member by the Canadian Forces.

The iPod touch belonged to the same member. [ 7 ] After taking these items, ex-Acting Sub-Lieutenant Massicotte put them in a pillowcase and boarded a bus with other members. Another member, a seaman, asked him what was in the pillowcase, but ex-Acting Sub-Lieutenant Massicotte did not reply and the seaman did not pursue the matter. Upon returning to his quarters, ex-Acting Sub-Lieutenant Massicotte turned on the laptop while his roommate was out and looked at the following files: a. Professionnal [ sic ] resume; b. Jack’s Resume; c. Grievance Memorandum.docx

d. Marco & Anne.jpg e. Route 66 Journey(63).jpg. [ 8 ] Ex-Acting Sub-Lieutenant Massicotte saw the owner’s address and telephone number when he looked at his resume. He then sent the computer and the iPod, by Canada Post Xpresspost™, to a friend living in the Trois-Rivières area. Ex-Acting Sub-Lieutenant Massicotte entered a false return address. [ 9 ] Upon returning to work on 17 October 2009, the member noticed that his items were missing. He filed a complaint with the military police, and the police investigated.

On 20 or 21 October 2009, ex-Acting Sub-Lieutenant Massicotte admitted to his supervisor and then to the military police during questioning an examination that he had taken the items in question and had mailed them. Ex-Acting Sub- Lieutenant Massicotte’s cooperation made it possible to intercept the items before they were delivered to their intended recipient.

On 28 October 2009, a military police officer accompanied by another member travelled to Québec, province of Quebec, in order to recover the laptop and the iPod touch from Canada Post. [ 10 ] On 12 January 2010, an analysis of the computer’s hard drive was undertaken to ensure that no sensitive data had been compromised. The hard drive contained a number of files of interest. Afterwards, the iPod was returned directly to its owner. On 17 February 2010, the hard drive analysis was completed, and it was received by the military police on 8 March 2010.

According to this analysis, the likelihood that someone had accessed any sensitive information was low. [ 11 ] Having summarized the main facts of this case, I will now concentrate on sentencing. In considering what sentence would be appropriate, I took into consideration the following aggravating factors and mitigating factors. I will begin with the factors mitigating the sentence. You filed two motions seeking a stay of proceedings, alleging that your rights under

section 7 and paragraph 10(

b) of the Canadian Charter of Rights and Freedoms had been violated, and you pleaded guilty to both offences after the Court dismissed these motions. You were entitled to file these motions, and this cannot be considered to be an aggravating factor, much like your not-guilty plea may not be considered to be an aggravating factor. You also immediately cooperated with the military police investigation. An admission of guilt and cooperation with a police investigation are usually signs of some remorse. Moreover, your plea saves the State large amounts of money and eliminates the need to call many witnesses.

Your cooperation since the very beginning of the police investigation is an important mitigating factor. However, I will not afford as much weight to your guilty plea as I would in a situation where the offender pleads guilty at the earliest opportunity. I must tell you that your testimony at the motion hearings and during the sentencing hearing raised more questions than it answered them. You constantly attempted to explain your acts and to make excuses for what you did. Your confusing explanations suggest that you do not really accept that you stole when you took the items in question on 17 October 2009.

You are with a group of soldiers; he identifies himself by name and by rank right at the beginning of your stay, and you want us to believe that you had doubts about the real identity of your supervisor, a sergeant, because he was wearing civilian clothes and you did not see his identity card. Your testimony in this regard is, frankly, bizarre. Your young age of 24 at the time of the offence is also a mitigating factor that I am taking into account. In addition, you do not have a conduct sheet or a criminal record.

Counsel submitted that you agreed to some aggravating factors, such as hiding the items in a pillowcase and mailing them, be included in the statement of circumstances and that this cooperation made it unnecessary to call witnesses. I will therefore consider this to be a mitigating factor. Even though you have not properly explained why you took the items in question and your explanations of the events on 17 October are confusing and far from clear, it is clear that you acted impulsively, and there is no evidence of premeditation.

Even though the pre-charge delay was not at issue during this trial, it must be seen as a mitigating factor. Ex-Acting Sub-Lieutenant Massicotte admitted to the military police officer during questioning that he had taken the items. Military police officers recovered the items on 28 October 2009 thanks to the information provided during your interrogation. On 12 January 2010, steps were taken to obtain an analysis of the computer’s hard drive. The hard drive analysis was completed on 17 February and received by the military police on 8 March 2010. The investigation file was closed on 7 July 2010.

Exhibit R1-5 is a statement by Major Cadman, a military policy officer, indicating that the police report was not transmitted to the accused’s unit in July 2010 and that this was an administrative or procedural error. There was a breach, and this runs contrary to established military police standards. No other evidence was produced concerning the military police investigation.

There is no evidence to explain why the military police waited until 12 January 2010 to request an analysis of the hard drive and why the file was closed on 7 July 2010 despite the results of the analysis having been received on 8 March 2010. Moreover, it took almost 11 months to transmit the report to the accused’s unit, which can only be explained by incompetence on the part of the person or persons in charge of the investigation. The facts of this case again seem to indicate a lack of rigour in the investigation and administration of a seemingly straightforward file.

Even though it appears that a police report regarding the theft of the computer and the iPod could have been drafted in November 2009, this report was not properly completed before the analysis of the hard drive. As was determined at the motion hearing, such a report was provided about a month after it was requested. From this the Court concluded at the motion hearing that the report could have been completed in December 2009 if the request for an analysis had been made promptly. The military police report could then have been transmitted to the accused’s unit in early 2010.

It therefore appears from the evidence, as determined for the first motion, that charges could have been brought in early 2010, in February or March, if the military police had performed their work more efficiently. There was therefore an unwarranted pre-charge delay of some 17 months, between March 2010 and August 2011. Ex-Acting Sub-Lieutenant Massicotte testified that he would have chosen a

summary trial if he had had the choice. As I have said many a time at previous trials, a

summary trial within the unit some time after the offence is committed is generally more beneficial for unit discipline and for the offender than a trial by court martial, in this instance, some 30 months later. I therefore consider the pre-charge delay to be a significant mitigating factor. The evidence suggests that your performance has been consistently good since your return from Esquimalt in October 2009. Your unit has employed you as a logistics officer, your superiors have trusted you, and you have progressed well in your career. You have had the opportunity to take career-related courses during this time.

Your good performance is another mitigating factor. Your conviction will certainly have a potentially negative effect on your current part-time employment: this is a further mitigating factor. On 21 October 2009, ex-Acting Sub-Lieutenant Massicotte’s supervisor, a sergeant, ordered him to accompany him to Victoria to recover the Canada Post acknowledgment. As determined for the previous motion, these actions resulted in a situation where a person in authority forced ex-Acting Sub-Lieutenant Massicotte to incriminate himself even though the search was fruitless.

Ex-Acting Sub- Lieutenant Massicotte testified that he would have been on leave that day. No other evidence was provided to the Court regarding the Sergeant’s actions. The Court does not know whether his actions were the result of a request of the police or the Sergeant’s own initiative. With respect to the motion, the Court concluded that the Sergeant’s actions had indeed infringed ex-Acting Sub-Lieutenant Massicotte’s right to liberty and his right against self-incrimination. This is also an important mitigating factor.

The computer and the iPod touch were recovered about 11 days after they disappeared thanks to your admission to the military police. [ 12 ] I will now discuss the aggravating factors: The nature of the offence and the punishment provided for by Parliament. The maximum punishment for this offence is imprisonment for a term not exceeding seven years. Objectively, this is a serious offence, since only 21 of the 60 service offences described at sections 73 to 129 of the National Defence Act carry a more severe maximum punishment than the punishment set out at

section 114. The evidence does not suggest that you were aware that the laptop computer was public property when you stole it. Instead, it suggests that you saw some items appearing to belong to a member in that member’s quarters at CFB Esquimalt. Instead of informing your supervisor of this, you decided to put the computer and the iPod touch in a pillowcase and take them with you. Your explanations

regarding your actions and your thoughts at that moment make no sense whatsoever. In R v Généreux, (SCC), [1992] 1 SCR 259, while explaining the purpose of a separate system of military courts, ChiefJustice Lamer wrote the following for the majority: Recourse to the ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military.There is thus a need for separate tribunals to enforce special disciplinary standards in the military. I agree, in this regard, with thecomments of Cattanach J. in MacKay v.

Rippon, (FC), [1978] 1 F.C. 233 (T.D.), at pp. 235-36: Without a code of service discipline the armed forces could not discharge the function for which they were created. In all likelihoodthose who join the armed forces do so in time of war from motives of patriotism and in time of peace against the eventuality of war. Tofunction efficiently as a force there must be prompt obedience to all lawful orders of superiors, concern, support for and concerted actionwith their comrades and a reverence for and a pride in the traditions of the service.

All members embark upon rigorous training to fitthemselves physically and mentally for the fulfilment of the role they have chosen and paramount in that there must be rigid adherence todiscipline. Many offences which are punishable under civil law take on a much more serious connotation as a service offence and as such warrantmore severe punishment. Examples of such are manifold such as theft from a comrade. In the service that is more reprehensible since itdetracts from the essential esprit de corps, mutual respect and trust in comrades and the exigencies of the barrack room life style.

Againfor a citizen to strike another a blow is assault punishable as such but for a soldier to strike a superior officer is much more seriousdetracting from discipline and in some circumstances may amount to mutiny. The converse, that is for an officer to strike a soldier is alsoa serious service offence. In civilian life it is the right of the citizen to refuse to work but for a soldier to do so is mutiny, a most seriousoffence, in some instances punishable by death.

Similarly a citizen may leave his employment at any time and the only liability he mayincur is for breach of contract but for a soldier to do so is the serious offence of absence without leave and if he does not intend to returnthe offence is desertion. Subjectively, the theft in question is also a serious offence. You stole items that appeared to belong to another member.

You committedthe theft in a room in barracks situated in a secure area; a guard was posted at the entrance to limit access to authorized personnel only.Even though everyone is responsible for keeping their belongings secure, members must be able to trust their brothers in arms. Youraction violated this trust and our esprit de corps, both of which are important to us. You were an officer when you committed the offences; however, you had only been commissioned in July 2009, about three monthsbefore the offences. You had no experience as an officer. I therefore do not consider this to be an aggravating factor.

Even though you did not plan to commit these offences, you concealed your actions by hiding the items in a pillowcase and mailing themunder a false name to hide your unlawful actions. I consider these acts to be an aggravating factor. [13] Ex-Acting Sub-Lieutenant Massicotte, even though your actions seem to have been out of character and you allegedly panickedwhen stealing the items, your testimony leads me to believe that you do not really want to or are not really able to accept yourresponsibility for stealing the items.

I strongly recommend that you have a long think about your testimony, look at yourself in the mirrorand ask yourself some hard questions about what you did at Esquimalt in 2009 and about what you want to do in life. One succeeds inlife by accepting one’s mistakes and aiming to improve oneself, not by making excuses. [14] I would have imposed a stricter sentence than the one I am imposing had it not been for the sergeant’s actions on 21 October 2009and the long pre-charge delay.

Considering the particular facts of this case, I am of the opinion that the sentence I will now imposeadequately incorporates sentencing principles and is the appropriate sentence for ensuring the protection of the public and themaintenance of discipline in the circumstances. Both the denunciation of the act and general deterrence must be considered. FOR THESE REASONS, THE COURT: [15] FINDS you guilty of the first and second charges.

[ 16 ] SENTENCES you, ex-Acting Sub-Lieutenant Massicotte, to a reprimand and a fine of 200 dollars. Counsel: Major P. Doucet, Canadian Military Prosecution Service Counsel for Her Majesty the Queen S. Johnson-Bégin Counsel for ex-Acting Sub-Lieutenant Massicotte