R v Hubick, 2013 CM 3012

COURT MARTIAL Citation: R v Hubick, 2013 CM 3012 Date: 20130506 Docket: 201265 Standing Court Martial Canadian Forces Base Cold Lake Cold Lake, Alberta, Canada Between: Her Majesty the Queen - and - Master Seaman D.G. Hubick, Offender Before: Lieutenant-Colonel L.-V. d'Auteuil, M.J. REASONS FOR SENTENCE (Orally) [1] Master Seaman Hubick having accepted and recorded a plea of guilty in respect of the first and second charge on the chargesheet, the court now finds you guilty of these charges.

Considering that the court found you not guilty of the third and fourth chargefurther to the decision of the prosecution to call no evidence then the court is left with no other charges to deal with. [2] It is now my duty as the military judge who is presiding at this Standing Court Martial to determine the sentence. [3] The military justice system constitutes the ultimate means to enforce discipline in the Canadian Forces which is afundamental element of the military activity. The purpose of this system is to prevent misconduct or in a more positive way see thepromotion of good conduct.

It is through discipline that an Armed Force ensures that its members will accomplish in a trusting andreliable manner successful missions. It also ensures that public order is maintained and that those who are subject to the Code of ServiceDiscipline are punished in the same way as any other person living in Canada.

It has long been recognized that the purpose of a separatesystem of military justice or tribunal is to allow the armed forces to deal with matters that pertain to respect of the Code of ServiceDiscipline and the maintenance of efficiency of the moral among the Canadian Forces (see R v Généreux, (SCC),[1992] 1 SCR 259, at page 293). That being said, the punishment imposed by any tribunal, military or civilian, should constitute theminimal necessary intervention that is adequate in the particular circumstances.

[ 4 ] Here, in this case, the prosecutor and the offender's defence counsel made a joint submission on sentence to be imposed by the court. They recommended that this court sentence you to a fine in the amount of 800 dollars in order to meet justice requirement. Although this court is not bound by this joint recommendation, it is generally accepted, as mentioned by the prosecutor, that the sentencing judge should depart from the joint submission only when there are cogent reasons for doing so.

Cogent reasons mean where the sentence is unfit, unreasonable, would bring the administration of justice into disrepute or be contrary to the public interest (see R v Taylor, 2008 CMAC 1 , at paragraph 21 ). [ 5 ] The fundamental purpose of sentencing in a court martial is to ensure respect for the law and maintenance of discipline by imposing sanctions that have one or more of the following objectives: (

a) to protect the public, which includes the Canadian Forces; (

b) to denounce unlawful conduct; (

c) to deter the offender and other persons from committing the same offence or offences; (

d) to separate offenders from society, where necessary; and (

e) to rehabilitate and reform offenders. [ 6 ] When imposing sentence, the military court must also take into consideration the following principles: (

a) a sentence must be proportionate to the gravity of the offence; (

b) a sentence must be proportionate to the responsibility and previous character of the offender; (

c) a sentence should be similar to sentences imposed on similar offenders for similar offences, committed in similar circumstances; (

d) an offender should not be deprived of liberty, if applicable in the circumstances, if less restrictive sanctions may be appropriate in the circumstances. In short, the court should impose a sentence of imprisonment or detention only as a last resort, as it was establish by the Court Martial Appeal Court and the Supreme Court of Canada decisions; and (

e) lastly, all sentences should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [ 7 ] I came to the conclusion that in the particular circumstances of this case sentencing should place the focus on the objectives of denunciation and general deterrence. [ 8 ] Here, the court is dealing with what is called pure military offences, meaning by this that they characterize the Code of Service Discipline and are offences that you don't find, not very often, in the civilian world. [ 9 ] Master Seaman Hubick was a member who was posted to Wing Administration, 4 Wing Cold Lake, at Canadian Forces Base Cold Lake, Alberta, at the time offences were committed.

It appears that in October 2011, Master Seaman Hubick was asked by his

immediate supervisor, Petty Officer 1st Class Bramburger to provide his Christmas leave pass by the end of the business day on 21 October 2011. On that day, PO1 Bramburger sent an email to Master Seaman Hubick to remind him to submit his Christmas leave pass by the end of the workday. Master Seaman Hubick refused to provide his Christmas leave pass and advised the earliest time he could enter his leave pass was the following Monday, 24 October 2011, at 1500 hours after he spoke to his wife. Petty Officer 1st Class Bramburger showed to Captain Bourque the chain of emails between himself and Master Seaman Hubick.

Then, Captain Bourque requested by email Master Seaman Hubick to provide his leave pass at the end of the workday. At some point, at the end of the day, Petty Officer 1st Class Bramburger waited at the door for Master Seaman Hubick.

Master Seaman Hubick shoved the leave pass into Petty Officer 1st Class Bramburger's hand and stated: "You little cry baby, here is the fucking leave pass." Concerning the AWOL charge, it appears that on 13 January 2012, the same immediate supervisor, Petty Officer 1st Class Bramburger, provided a job expectant form to Master Seaman Hubick including his daily working hours which were from 0730 hours to 1630 hours, and a lunch break from 1200 hours to 1300 hours. On 19 March 2012, after a week of leave, Petty Officer 1st Class Bramburger arrived to work at 0720 hours.

Master Seaman Hubick did not arrive at work until 0830 hours which is approximately one hour after his ordered working hours.

This is where Petty Officer 1st Class Bramburger asked Master Seaman Hubick why he was late for work and Master Seaman Hubick responded: I did not know you were back today. [ 10 ] As mentioned by the prosecutor, these offences are directly related to some Canadian Forces member ethical obligations such as responsibility and integrity for a non-commissioned member, as for an officer, being reliable at all times is more than essential for the accomplishment of any task or mission in an armed force whatever is the function or the role we have to perform especially while specially in such situation. [ 11 ] In arriving at what the court considers a fair and appropriate sentence, the court has considered the following mitigating and aggravating factors: (

a) The court considers as aggravating the objective seriousness of the offences. You were charged with offences laid in accordance with s. 90 and s. 85 of the National Defence Act which are punishable by imprisonment for less than two years in the case of the AWOL and by dismissal with disgrace from Her Majesty's service or to less punishment for the insubordination; (

b) The court considered the subjective seriousness of the offence and it goes to two things; i. first, your rank and experience. Going to your MPRR, it's loud and clear you have a lot of experience in the military world and in the Canadian Forces, and because of that your rank and your experience should have told you better in the circumstances.

Being on time and using respect toward supervisor is a fundamental thing and I'm pretty sure at the rank you are, you know it because you probably supervised other people and if you're not, at least the expectation from people wearing the appointment, not the rank but the appointment you have, being an example even though unfortunately you disagree. I think you have the right to disagree, it's a matter of controlling your temper and the way to express yourself and I think from that you will think next time twice about doing it properly, and ii. the second thing is about your conduct sheet.

It is true that the two incidents reported in your conduct sheet are different, but what it reveals to the court that once in a while, not often, once in a while you have to be reminded by military tribunal about the Code of Service Discipline and in that way I have to consider this as an aggravating factor. [ 12 ] On the other hand, I have also considered mitigating factors: (

a) First, your guilty plea. Through the facts presented to this court, the court must consider your guilty plea genuine sign of remorse and that you are very sincere in your pursuit of staying a valid asset in the Canadian Forces. It also discloses that you are taking full responsibility for what you did; (

b) I have also to consider the unique set of circumstances on both offences: i. First, for the AWOL, I understand that it's very unique in the sense that the context brought to my attention some confusion about what you were told not by your supervisor but by the working environment people and I can understand that your intent maybe was not to be late but before checking with your direct supervisor about your own

interpretation of the thing, you decided probably on your own to do it your way. Unfortunately that's not the way it is in the Canadian Forces. Unfortunately because maybe it's something you want to check, but because it's very unique it's not the same, you were not on a ship as it was for what

happened concerning both incidents on your conduct sheet, it's in an office, it's about the

interpretation or misinterpretation of a rule and I don't think this is something that you intend to do in the future. I think you clarify the way things must be; and ii. Now concerning the insubordination, it's the first time you are found guilty by a military tribunal for such a thing.

I think you understand clearly with the rank and experience you have, not just as a military member, but as a human being dealing with others that you still have to be an example but also that it went beyond what you wanted to express in some ways, and the way you express it, the context was wrong and it's very unique, I don't have any indication that this is something you have a tendency to do, being disrespectful for the authority so I consider this an isolated incident and it goes as a mitigating factor; (

c) Also there is the fact that you had to face this court martial. Being before a court martial, very often, has a deterrent effect on people being forced, they have not chose to come here today, it's the prosecution who made the decision to charge and to pursue with the matter before this court and so as a matter of fact, you heard me considering general deterrence as an objective and being before this court it's a fact that could be deterrent not just for you but for others in the courtroom and on this base. You are appearing before your peers, colleagues, so it's important to consider that as a mitigating factor as a lesson learned probably; and (

d) You have also to consider, if I accept the suggestion, that this punishment will remain on your conduct sheet as the others items on it, until you get a pardon for the criminal record you have. So it's adding to, probably you would have been in the position to ask for a pardon but because of what is going on today, it will just delay the thing. So it has an impact and I have to consider that too, it's a consequence that is often overlooked which is that you will—it will add to your criminal record some time in order to get a pardon. [ 13 ] I hope you will take this as a lesson learned.

I don't think I have to say much because from what I got in the evidence; married, two daughters, lot of experience, you remustered from being a cook to being a steward, you have spent a lot of time within the Canadian Forces, I think you clearly understand what happened and what would be your conduct in the future so I don't want to expand on that and I hope you're taking it not just as a bad thing but also as a lesson learned and maybe if you have an opportunity to supervise people and act as a leader, you will keep what happened here as something not to do.

I'm pretty sure, I'm pretty confident you will use it in that way. [ 14 ] So in consequence, the court will accept the joint submission made by counsel to sentence you to a fine in the amount of 800 dollars, considering that it is not contrary to the public interest, it will not bring the administration of justice into disrepute. FOR THESE REASONS, THE COURT: [ 15 ] FINDS you guilty of the first and second charge on the charge sheet. [ 16 ] SENTENCES you to a fine in the amount of 800 dollars payable in monthly instalments of 200 dollars each starting on 1 June 2013. Counsel: Lieutenant-Commander S.

Torani, Director of Military Prosecutions Counsel for Her Majesty the Queen Major J.L.P.L. Boutin, Directorate of Defence Counsel Services Counsel for Master Seaman D.G. Hubick