R v Lovell, 2013 CM 1002

COURT MARTIAL Citation: R v Lovell , 2013 CM 1002 Date: 20130416 Docket: 201268 Standing Court Martial Canadian Forces Base Edmonton Edmonton, Alberta, Canada Between: Her Majesty the Queen - and - Corporal M.A. Lovell, Offender Before: Colonel M. Dutil, C.M.J. REASONS FOR SENTENCE (Orally) [ 1 ] Corporal Lovell admitted his guilt to an offence of absence without leave contrary to

section 90 of the National Defence Act . Prosecution and defence made a joint submission on sentence. They recommend that the court sentence the offender to a fine of 1,000 dollars. Although the court is not bound by that recommendation, it is trite law that a court should not depart from a joint recommendation made by counsel unless that recommendation would be contrary to the public interest or bring the administration of justice into disrepute. [ 2 ] The facts surrounding this case are very simple. At the time of the offence, Corporal Lovell was a member of 1 PPCLI here in Edmonton.

His work day was running from eight o'clock to 1600 hours in the afternoon and he had been on sick leave from 26 February until 10 March 2012. On Monday, 12 March 2012, and Tuesday, 13 March 2012, most of his Company was on leave as they had recently completed an exercise. Corporal Lovell did not participate in that exercise because he was on sick leave. On 14 March 2012, his superior noticed that he was not at work. By the end of the work day on 14 March 2012, Corporal Lovell was contacted by his superior and ordered him to show up for work the next day, which he did.

Corporal Lovell was under the impression that his sick leave ended on 16 March 2012. These are very simple facts for a very simple offence. [ 3 ] The fundamental purpose of sentencing at court martial is to contribute to the respect of the law, but equally important, is the

maintenance of military discipline. The prosecution argued that this offence is at the heart of basic military discipline. I cannot agree more. However, during the hearing I raised my concerns with the prosecution as to why it took almost 13 months to bring this matter to trial. The person was originally charged approximately one month after the commission of the offence. Charges were preferred in early October 2012 and the preferral was made approximately one week after.

Prosecution recognized that counsel for the defence, once disclosure was complete — counsel for the defence, as I said, made it known to the prosecution that Corporal Lovell intended to plead guilty at the first opportunity and the trial was set for this date. [ 4 ] Although general deterrence and specific deterrence and the main objectives of sentencing in a case like this one, it is very difficult to see how general deterrence can be achieved in bringing this matter, in the circumstances of this case, to court 13 months after the fact.

I state again that in the circumstances I fail to see how a like the one proposed, can contribute to the prompt maintenance of military discipline because it is not the sentence per se that will achieve it. The joint submission made by counsel is totally appropriate, it is right within the norm. It is based on reasons and valid precedents. The issue is one of respecting the spirit of

section 162 of the National Defence Act which is clearly not present in this case. [ 5 ] I said earlier that a court should not depart from a joint submission unless it would be contrary to the public interest or if it would bring the administration of justice into disrepute. These principles work both ways in the sense that the court cannot go beyond what is recommended if it is within those boundaries, but equally, the court cannot go under what is recommended because they are within those boundaries.

But I can tell you that if it would not be a joint submission, the court would grant or impose a lower sentence in this case. But again, I repeat, this recommendation made by counsel is well within the acceptable range of sentences in this case. [ 6 ] The only aggravating factor that I see in this case are the previous convictions of Corporal Lovell, but they have to be put in context and also this case has to be put in its proper context. He did not show up because he thought his leave was to end the following week and he accepted fully his responsibility. [ 7 ] The mitigating factors are very important.

Of course, the guilty plea is the first one; there's no issue that it was made at the earliest opportunity and that it is a real expression of remorse. The second mitigating factor is the fact that it was a mistake; I accept that as a fact. The third mitigating factor I see in this case is the medical condition of Corporal Lovell and his future release, I am informed within a year, from the Canadian Forces as a result of serious injuries suffered during his deployment in Afghanistan in January 2010 where he was hit and hurt seriously in combat situation. [ 8 ] In conclusion, I accept the recommendation.

I think some reflection has to be made as to how to improve, if possible, the process of simple matters such as this one in order not only to assist the Canadian Forces to maintain discipline but also ensure that justice is done and appears to be done. But also it is equally important in the interest of any accused or offenders to have their matters dealt with quickly because they need to be able to move on on those matters. I take when I asked the defence counsel if he had anything to add with regard to submissions, he remained silent.

I think his silence speaks by itself that there is no reason as to why a matter like this one should have taken 13 months to come to court martial. FOR THESE REASONS, THE COURT: [ 9 ] FINDS Corporal Lovell guilty for an offence under

section 90 of the National Defence Act . AND [ 10 ] SENTENCES the offender to a fine in the amount of 1,000 dollars. Counsel: Lieutenant-Commander S.A. Torani, Canadian Military Prosecution Services Counsel for Her Majesty the Queen

Major C.E. Thomas, Directorate of Defence Counsel Services Counsel for Corporal M.A. Lovell