R. v. Kennedy, 2010 CM 1011

COURT MARTIAL Citation: R. v. Kennedy, 2010 CM 1011 Date: 20100429 Docket: 200961 Standing Court Martial CFB Bagotville Saguenay, Quebec, Canada Between: Her Majesty The Queen - and - Corporal T.L.Kennedy, Offender Before: Colonel M. Dutil, C.M.J. REASONS FOR SENTENCE (Orally) [ 1 ] Corporal Kennedy, having accepted and recorded a plea of guilty in respect of the 3rd and 4th charges, and directed that the proceedings with regard to the 1st and 2nd charged be stayed, the court finds you guilty of the 3rd and 4th charges.

It is now incumbent upon me to determine what shall be an appropriate, fair and just sentence that will maintain military discipline. Counsel for the prosecution and defence have made a joint submission on sentence. They recommend that you be sentenced to a reprimand and a fine in the amount of 300 dollars. Although this court is not bound by this joint submission, it is generally accepted that a joint submission should be departed from only where to accept it would be contrary to public interest or would bring the administration of military justice into disrepute.

I emphasize that the test to be applied in order to disregard the joint submission is not whether the presiding judge would have reached a different conclusion to that of the joint recommendation of counsel. [ 2 ] It has been long recognized that the purpose of a separate military justice is to allow the Armed Forces to deal with matters that pertain directly to discipline, efficiency and morale of the military. It is also recognized that the military context may, in appropriate circumstances, justify and, at times, require a sentence that will promote military objectives.

That being said, the punishment imposed by any tribunal, military or civil should constitute the minimum necessary intervention that is adequate in the particular circumstances. [ 3 ] In R. v. St-Jean [1] , Létourneau J.A., for the Court, did put in perspective the impact of fraudulent acts in a public organization like the Canadian Forces in making the followings remarks at paragraph 22: After a review of the sentence imposed, the principles applicable and the jurisprudence of this Court, I cannot say that the sentencing President erred or acted unreasonably when he asserted the need to emphasize deterrence.

In a large and complex public organization such as the Canadian Forces, which possesses a very substantial budget, manages an enormous quantity of material and Crown assets and operates a multiplicity of diversified programs, the management must inevitably rely upon the assistance and integrity of its employees. No control system, however efficient it may be, can be a valid substitute for the integrity of the staff in which the management puts its

faith and confidence. A breach of that faith by way of fraud is often very difficult to detect and costly to investigate. It undermines public respect for the institution and results in losses of public funds.

Military offenders convicted of fraud, and other military personnel who might be tempted to imitate them, should know that they expose themselves to a sanction that will unequivocally denounce their behaviour and their abuse of the faith and confidence vested in them by their employer as well as the public and that will discourage them from embarking upon this kind of conduct. [ 4 ] The fundamental purpose of sentencing at court martial is to contribute to the respect of the law and the maintenance of military discipline by imposing punishments that meet one or more of the following objectives: the protection of the public and it includes the interest of the Canadian Forces; the denunciation of the unlawful conduct; and, the deterrent effect of the punishment, not only on the offender but also upon others who might be tempted to commit such offences and the reformation and rehabilitation of the offender. [ 5 ] The sentence must also take into consideration the following principles: the sentence must be commensurate with the gravity of the offence; the previous character of the offender and his or her degree of responsibility; the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

A court must also respect the principle that an offender should not be deprived of liberty if less restrictive punishments may be appropriate in the circumstances. In other words, punishments in the form of incarceration should be used as a last resort.

Finally, the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [ 6 ] In determining sentence, I have considered the totality of the circumstances surrounding the commission of the offence as revealed by the statement of circum-stances that you have accepted as conclusive evidence.

The facts surrounding the commission of the offences reveal that: between February 5 and April 18, 2008, you attended at a first course called "Firefighter QL5" at Borden which was immediately followed by another course called "Hazmat Course" from April 21 to May 2, 2008. For those two courses, you were allowed to use your personal vehicle.

On your return to Bagotville in May 2008, you submitted an itinerary with your courses travel claims to Bagotville Orderly Room indicating that you had returned home to Bagotville between the two courses on the weekend of April 19 to 20, 2008.On June 26 of that year, in Bagotville, you stated on a claim that you had travelled to home in Saguenay, Province of Quebec on 18 April, 2008, when in fact you had stayed at CFB Borden in Ontario. At the end of the year an internal audit of your finalized claims showed discrepancies.

An audit of ration cards from the mess confirmed that your ration card had been used on April 19th and 20th, 2008, at CFB Borden. Shortly after, Captain Boudreau met with you and highlighted the issue. However, you maintained that you had returned home on the dates in question. On Saturday, January 10, 2009, you sent an email to Captain Boudreau confirming that you had just lied at your previous meeting with him and that you sincerely regretted it. You also stated that you had made a mistake and were prepared to accept the consequences.

Shortly after, you met with the police and again you admitted your wrongdoing and you reimbursed at your own initiative shortly after the sum of $793.17. [ 7 ] Other that the circumstances surrounding the commission of the offence, I have considered the documentary evidence filed before the court. I have also considered your testimony during the sentencing hearing and the submissions made by counsel.

Finally, I have taken into account the direct and indirect consequences that the findings and sentence will have on you. [ 8 ] The sentence in this case should emphasize the need for general deterrence, specific deterrence, denunciation of the conduct and rehabilitation.

The primary mitigating factors are: first, your early admissions and assumed responsibility for your actions at the earliest stage and your pleas of guilty which is a sign of your genuine remorse for your actions; second, your record of service that describes you as a dedicated and highly effective tradesperson with serious potential to progress rapidly within your trade as a firefighter; and third, the fact that the money fraudulently obtained, almost 800 dollars, have been reimbursed over one year ago and that at your own initiative. [ 9 ] However, the following aspects are aggravating: first, the objective gravity of the offence under s. 117 of the National Defence Act , that carries a maximum punishment of imprisonment for less than two years; second, the breach of trust resulting from the fraudulent statement and the improper use of the internal claim process, which relies heavily on the integrity and honesty of all serving members; and third, the fact that this is not your first encounter with the military justice system as it appears on your conduct sheet.

I strongly recommend that you make sure that this event be the very last episode of your encounters with the military justice system as an accused and as an offender, if you wish to have a good future in the Canadian Forces. [ 10 ] Applying all the legal principles and guidance from the appellate court, I have no substantive reasons to reject the joint submission made by counsel which I do accept.

Nevertheless, I must state that it represents the lowest possible sentence in the circumstances, before a judge should embark on a formal enquiry to reassess the adequacy of the joint submission. [ 11 ] Consequently, I sentence you to a reprimand and a fine in the amount of 300 dollars payable immediately. [11] Counsel : Major A. St-Amant, Canadian Military Prosecution Service Counsel for Her Majesty the Queen Major B.L.J. Tremblay, Directorate of Defence Counsel Services Counsel for Corporal T.L. Kennedy