Her Majesty the Queen - v. -, 2013 CM 3027

COURT MARTIAL Citation: R v Valcour, 2013 CM 3027 Date: 20130923 Docket: 201356 Standing Court Martial Asticou Courtroom Gatineau, Quebec, Canada Between: Her Majesty the Queen - and - Corporal M.C. Valcour, Offender Before: Lieutenant-Colonel L.-V. d'Auteuil, M.J. REASONS FOR SENTENCE (Orally) [1] Corporal Valcour, having accepted and recorded a plea of guilty in respect of the second charge on the charge sheet, thecourt now finds you guilty of this charge. Considering that the first charge was withdrawn, there is no other charge for the court to dealwith.

It is now my duty as the military judge who is presiding at this Standing Court Martial to determine the sentence. [2] 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. [3] As the Supreme Court of Canada recognized in Généreux (see R v Généreux (SCC), [1992] 1 SCR 259 at293):

... To maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently. It emphasized that, in the particular context of military justice: Breaches of military discipline must be dealt with speedily and frequently, punished more severely than would be the case if a civilian engaged in such conduct. However, the law does not allow a military court to impose a sentence that would be beyond what is required in the circumstances of the case.

In other words, any sentence imposed by a court must be adapted to the individual offender and constitute the minimum necessary intervention, since moderation is the bedrock principle of the modern theory of sentencing in Canada. [ 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 $200.

Although this court is not bound by this joint recommendation, it is generally accepted 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 as mentioned in the Court Martial Appeal Court decision of 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 offences; (

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

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

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

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

c) the 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 established 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 a military offence about drunkenness while on duty and behaving in disorderly manner. You were tasked as providing a service as general duty, what is commonly know as GD, at the Army Ball on 14 April 2012.

There were some gift bags to be handed out to guests and my understanding is that you got drunk by drinking alcohol while you were on duty and were supposed to perform other tasks. [ 9 ] In arriving at what the court considers a fair and appropriate sentence, the court has considered the following mitigating and aggravating factors. [ 10 ] First, the court considers as aggravating: (

a) the objective seriousness of the offence. The offence you were charged with was laid in accordance with

section 97 of the National Defence Act ; which is, punishable by imprisonment for less than two years or to less punishment; (

b) the subjective seriousness of the offence and there's two items I would like to talk about. i. First, your experience; it's loud and clear at the time you had four years in the service and you had some experience at the rank. You probably went through this experience of being a GD on other matters prior to that. You knew what you had to do and you decided to behave differently.

So I have to consider the fact that you had some experience as an aggravating factor at that time; and ii. also, the second factor for me is your function, being a GD may be considered as not something great, but not depending on the circumstances but in any circumstances what you are tasked on is still important. In fact, people relied on you in order for you to perform something that has some connection with the public. Your conduct at an Army Ball, which is public, where other military members are there, no matter what is the rank, make it more serious in the circumstances.

People relied on you and you failed at that time to be reliable by getting drunk. [ 11 ] There's also mitigating factors that I considered: (

a) first, your guilty plea. For the facts presented to this court, the court must consider your guilty plea as a clear, genuine sign of remorse and that you are very sincere in your pursuit to stay a valued asset in the Canadian Forces. It also disclosed the fact that you're taking full responsibility for what you did; (

b) I have also to consider that at the end of this there's no consequences. It is true that it was indicated to me that other people tasked as GD had to perform some other duties while you were not there. But my understanding is that there was no demonstration of consequences for the fact that you got drunk and you went away; (

c) your age. As mentioned by your counsel you are at the beginning of your career and you still have a lot of time to have a future in the Canadian Forces and you can become a very valuable and good asset to the Canadian Forces and to the Canadian society considering that you are also a Reservist. Meaning, what you do in the military can be reflected in our society too; (

d) your performance. My understanding is that you are performing very well in the Canadian Forces. Up to that time in 2012 you were considered and I think you're still considered a really good soldier. Not just because you're a really good shooter, but because of your attitude, generally speaking. And your unit has a lot of consideration for you and I have to consider this as a mitigating factor in

the circumstances; (

e) I have to also to consider that you had to face this court martial. It may be considered by some people as a minor offence, also a minor incident, but it's still the fact that there's some people here. Probably it's well known at your unit that you were court martialed for this matter. So this is something that the court has to consider because it has some deterrent effect on you, but also on other people from your unit or any other military members who would think to do something like this; (

f) it is an isolated incident out of character. So it's your first offence and it's not something that you are used to do. I don't have any evidence of that. So for me something that I consider that won't happen again in the future. So it is something that I have to consider as mitigating; (

g) finally, your condemnation will be put on your conduct sheet and will result in the fact that it will be there for at least a year if I accept the suggestion. So I think it is important to consider that you won't be, by your unit at least, check, because it's on your conduct sheet. It will be considered for the next year; and (

h) also, the reality of your conviction today is that the other counsel points that is sometimes overlooked, is that you will now have a criminal record because of that action. So we have to keep this on your mind. [ 12 ] From my perspective you're an excellent soldier who made a mistake and that's why you're here today, but you can build on this and you're about to probably become a leader in the Canadian Forces. You still have some things to do, but at some point you may be considered as a leader. You may be considered for leadership course in order to be appointed as a master corporal and go further.

So you can take it as a lesson from that and explain to others what is the good example to give and warn others of doing some things like this. Take it like this because you're at the beginning of your career and it doesn't mean that you're a bad person or a bad soldier. People make mistakes; you did.

You're dealing with the consequence and now you can turn the page and move on and continue to perform as you dream it. [ 13 ] Then I will accept this joint submission made by counsel to sentence you to a fine in amount of $200 considering that it is not contrary to the public interest and will not bring the administration of justice into disrepute. FOR THESE REASONS, THE COURT: [ 14 ] FINDS you guilty of the second charge on the charge sheet, for an offence laid under

section 97 of the National Defence Act . [ 15 ] SENTENCES you to a fine in the amount of $200 payable immediately. Counsel: Major E. Carrier, Canadian Military Prosecution Services Counsel for Her Majesty the Queen Major S. Collins, Directorate of Defence Counsel Services Counsel for Corporal M.C. Valcour