R v Weir, 2013 CM 3010

COURT MARTIAL Citation: R v Weir, 2013 CM 3010 Date: 20130320 Docket: 201304 Standing Court Martial Canadian Forces Base Halifax Halifax, Nova Scotia, Canada Between: Her Majesty the Queen - and - Corporal T.A. Weir, Offender Before: Lieutenant-Colonel L.-V. d'Auteuil, M.J.

REASONS FOR SENTENCE (Orally) [ 1 ] Corporal Weir, having accepted and recorded your plea of guilty in respect of the first and only charge on the Charge Sheet, the court now finds you guilty of this charge. [ 2 ] It is now my duty as the military judge who is presiding at this standing court martial to determine the sentence. [ 3 ] But before going through the considerations of my decision I want to explain myself about the comment I made. You saw that I questioned why we were here today about from a process perspective. I just want to reiterate this fact.

Section 90, absence without leave, is considered as a minor offence in

article 108.17 of the Queen's Regulations for the Canadian Forces, and it reads in part as follows:

(1) An accused person triable by

summary trial in respect of a service offence has a right to be tried by court martial unless: (

a) the offence is contrary to one of the following provisions of the National Defence Act :

And

section 90 is included in that list, there is five offences, including

section 90. (

b) the circumstances surrounding the commission of the offence are sufficiently minor in nature that the officer exercising

summarytrial jurisdiction over the accused concludes that a punishment of detention, reduction in rank or a fine in excess of 25 percent of monthlybasic pay would not be warranted if the accused were found guilty of the offence. [4] So basically the officer presiding at the

summary trial had to make a determination that if he considers imposing, potentiallyif you were found guilty by him or her, that he would impose detention, reduction in rank or a serious fine. I was pleased tohear——there is a process where the chain of command decided——especially the person presiding at the

summary trial or the personwho had jurisdiction decided to give you an election and the very purpose of the court martial, one of the purposes that the court martialserves is exactly that. When you made that choice to be tried by court martial or before a court martial you made the choice to be triedby an independent and impartial tribunal presided by an independent and impartial judge which is totally okay with me because I don'thave——in a sense I don't have an idea of what went on. I didn't have any idea of the case at all and that's the very purpose.

What I waswondering about, it was about the chain of command and the presiding officer deciding——or the commanding officer deciding on hisown to bring this matter to a court martial without asking you and having the prosecution who had the authority to return the file until anofficer or the commanding officer to proceed by

summary trial not making that decision. So I was wondering about that. In suchcircumstances, the military justice system doesn't work well and there is a waste of time and money. But in such circumstances, bereassured that I don't have any issue with what you made as a choice but I was wondering about the process.

Because as a judge, I haveto——if the prosecution is making some decisions, I don't have the authority to question the discretion, but at some point we all wonderif the public money is spent correctly and that's why I asked this question, but it had nothing to do with your choice, so be reassuredabout that. [5] Considering that the military justice system is a fundamental element of the military activity it can be said that it is anultimate mean to enforce the discipline. The purpose of the system is to prevent misconduct or in a more positive way see the promotionof good conduct.

It is through discipline that an Armed Force ensures that its members will accomplish in a trusting and reliable mannersuccessful missions.

It also ensures that the public order is maintain and that those who are subject to the Code of Service Discipline arepunished in the same way as any other person living in Canada. [6] It has been long recognized that the purpose of a separate system of military justice or tribunals is to allow the Armed Forcesto deal with matters that pertain to the respect of the Code of Service Discipline and the maintenance of efficiency and the morale amongthe Canadian Forces, see R v Généreux (SCC), 1992 1 SCR 259 at 293.

That being said, the punishment imposed byany tribunal, military or civilian, should constitute the minimum necessary intervention that is adequate in the particular circumstances. [7] Here in this case, the prosecutor and the offender's defence counsel made a joint submission on sentence to be imposed bythis court.

They recommended that I sentence you to a fine in the amount of 400 dollars in order to meet justice requirements. [8] Although this court is not bound by this joint recommendation, it is generally accepted that the sentencing judge shoulddepart 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 stated in R v Taylor 2008CMAC 1 at paragraph 21. [9] The fundamental purpose of sentencing in a court martial is to ensure respect for the law and maintenance of discipline byimposing 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; d. to separate offenders from society where necessary; and

e. to rehabilitate and reform offenders. [ 10 ] 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 the 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. the 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. e. lastly, all sentences should be increased or reduced to account to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [ 11 ] I came to the conclusion that in the particular circumstances of this case sentencing should place the focus on the objective of general and specific deterrence as suggested by both counsel.

It must be said that general deterrence means that the sentence imposed should deter not simply the offender from reoffending but also others in similar situations from engaging for whatever reasons in the same prohibited conduct. [ 12 ] Here the court is dealing with a pure military offence for being absent without leave from your unit which goes to the heart of the military discipline. This type of offence is about the application of the principles of responsibility and integrity.

For a soldier being trustworthy and reliable at all time is more than essential for any mission and the Armed Forces whatever is the function or the role you have to perform. However the court will impose what it considers to be the necessary minimum punishment in the circumstances. [ 13 ] Here in this case on 22 June 2012, you were supposed to attend a physical training session at 0730 hours at Beaumaris Lake, Edmonton, Alberta which was called a physical training session.

You were informed and understood that a physical training session was your place of duty, but you did not attend that physical training session. Essentially, further to some research it was found out by Lieutenant Girard that you slept in that morning. You used your cellular phone as an alarm clock, but your cellular phone lost all battery power which nullified your alarm clock.

As a result, you slept in and missed that physical training session. [ 14 ] In arriving at what the court considers a fair and appropriate sentence, the court has considered the following mitigating and aggravating factors. [ 15 ] The court considers as aggravating the objective seriousness of the offence. The offence you were charged with was laid in accordance with

section 90 of the National Defence Act for being absent without leave. This offence is punishable by imprisonment for less than two years or to less punishment. [ 16 ] Secondly, the subjective seriousness of the offence; I would say that it is the length of your absence that is the main aggravating factor. I would disagree with your counsel that it's a short absence; 4 hours and 30 minutes is a long one in the military knowing that being late for 10 minutes is something short, all the morning long you were not there. So from that perspective I have to consider this as an aggravating factor. [ 17 ] However there are also mitigating factors that I've considered:

a. First, there is your guilty plea. Through the facts presented to this court, the court must consider your guilty plea as a clear, genuine sign of remorse in that you are very sincere in your pursuit of staying a valued asset to the Canadian Forces. And it also disclosed the fact that you are taking full responsibility for what you did. In addition, when I had a look at the statement used as evidence by your counsel in this case, clearly from the beginning you regretted what you did and you clearly established in your written statement that you're taking full responsibility and it is a mitigating factor. b.

I have also to consider your performance in your military service as a mitigating factor. Clearly, you were improving at that time your performance. Having a look at both PERs, I understand that you were progressing well and I haven't seen the last one because the evaluation period for the next one is not over yet, it's by the end of March, but my understanding is that you were on your way of doing well. So I have to consider this as also a mitigating factor. c.

As mentioned by your counsel, the fact that you have to face this court martial which was announced and accessible to the public in which took place in the presence of some of your colleagues and your peers has no doubt had a very significant deterrent effect on you and on them. The message is that the kind of conduct that you displayed will not be tolerated in any way and will be dealt with accordingly. d. The fact that from some perspective it is an isolated incident.

It is true that you have a conduct sheet but I didn't consider this as an aggravating factor in the circumstances especially with all the explanation provided to the court. I would say that, yes it is true that it's the second time in your career that you're doing this but it's not something that is systemic in the sense that you do it —— it's not a repetition on a short time period.

I would say that with the PER provided and comments about your performance and potential at the time, it was an out of character incident that came from special circumstances and from my perspective it is not something that you're used to do and then I consider this more as something isolated than as a clear refusal to go by the rules. e. The court must also recognize that as a matter of fact, this punishment will remain on your conduct sheet as the previous one unless you get a pardon for your criminal record you're having. You're adding time to your criminal record before getting a pardon for that.

So there are some consequences that sometime are overlooked and you still have a criminal record and it is not insignificant. [ 18 ] In consequence, the court will accept the joint submission made by counsel to sentence you to a fine in the amount of 400 dollars 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 [ 19 ] FINDS you guilty of the first charge for an offence under

section 90 of the National Defence Act; and. [ 20 ] SENTENCES you to a fine in the amount of 400 dollars payable in two instalments, the first instalment of 200 dollars due on the 1st of April 2013 and 200 dollars on the 1st of May 2013, one month later. Counsel: Major A.C. Samson, Canadian Military Prosecution Service Counsel for Her Majesty the Queen Major S.L. Collins, Directorate of Defence Counsel Services Counsel for Corporal T.A. Weir