Chapter 14: Sentencing and Punishment

SECTION 1 - GENERAL

1. The passing of an appropriate sentence is an essential part of the trial process, and often presents one of the greatest challenges to a presiding officer. In order to assist the presiding officer, the procedures to be followed when imposing a sentence are set out in QR&O. The procedures incorporate the required elements of fairness and provide guidance on the factors to be considered when determining an appropriate sentence.

2. A sentence may be imposed that consists of more than one punishment. In order to impose an appropriate sentence there must be a clear understanding of the general principles of sentencing, and the application of those principles in the maintenance of the discipline of an armed force. The presiding officer must also consider the circumstances of the offence and the offender, the scope and effect of punishments, and the procedures to be followed in determining the type and severity of punishment.

SECTION 2 - THE PURPOSE AND PRINCIPLES OF SENTENCING AND PUNISHMENT

Purpose and Goals

3. The fundamental purpose of sentencing is the protection of society and the promotion of respect for the law through just sanctions. There are four generally accepted goals of sentencing.

They are:

  1. general deterrence;
  2. specific deterrence;
  3. rehabilitation and reform; and
  4. retribution.1

4. General deterrence is based on the concept that legal sanction against an offender will discourage potential offenders. General deterrence is often given particular weight when offences involve violence, or when there is a prevalence of a specific offence in a community. Specific deterrence has the goal of dissuading the offender from re-offending. Rehabilitation is emphasized in relation to an offender who has demonstrated a reasonable probability that the offender can become a law abiding member of society. Retribution will be highlighted to demonstrate society's aversion towards morally reprehensible conduct. Retribution is linked to denunciation as a sentencing objective.

5. None of these sentencing goals should be considered on their own. For example, denunciation, while a legitimate goal of sentencing, can only be assessed having regard to the circumstances of the case and the offender. When assessing the weight given to the goal of denunciation consideration should also be given to the effect it might have on the rehabilitation of the offender.2

6. A basic principle in sentencing is that a punishment imposed must be proportional to the seriousness of the offence. This helps ensure that the public, including members of the CF, can be satisfied that the offender deserves the punishment, and feels confident in the fairness and rationality of the system.3 Punishment must be proportionate to the moral blameworthiness of the offender. A person causing intentional harm should be punished more severely than someone causing harm unintentionally.4

Unique Aspects of Military Society

7. The unique requirement for an armed force to maintain discipline may require specific emphasis to be placed on one or more of the goals of sentencing. The CF has a separate system of military tribunals to deal with matters that pertain directly to discipline, efficiency and morale. In the words of the Chief Justice of the Supreme Court of Canada:

To maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently. 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…[r]ecourse to the ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military. There is thus a need for separate tribunals to enforce special disciplinary standards in the military.5

8. In a military context the punishment imposed may be affected by a need to emphasize the goals of specific and general deterrence. Sentencing in military cases must not only promote good order, but also high morale and discipline. Discipline requires the instant obedience to lawful orders. Therefore, when sentencing a member for a failure to carry out assigned duties, particular emphasis is normally placed on specific and general deterrence.6

9. The different nature of offences in military society may also have an impact on the severity of the sentence passed by a service tribunal. For example, theft and assault may have a more serious connotation in military life. Again the Supreme Court of Canada acknowledged these differences in adopting the following statement:

Many offences which are punishable under civil law take on a much more serious connotation as a service offence and as such warrant more severe punishment. Examples of such are manifold such as theft from a comrade. In the service that is more reprehensible since it detracts from the esprit de corps, mutual respect and trust in comrades and the exigencies of the barrack room life style. Again for a citizen to strike another a blow is assault punishable as such but for a soldier to strike a superior officer is much more serious detracting from discipline and in some circumstances may amount to mutiny. The converse, that is for an officer to strike a soldier, is also a serious offence.7

Similarly while a civilian has the right not to show up at work members of the CF may find themselves charged with absence without leave.8

10. Consideration may also be given to the trust that is placed in members of the CF, particularly by virtue of rank and responsibility. Military service often requires CF personnel to work independently. Consequently superiors often place significant reliance on subordinates carrying out their assigned duties and reporting back accurately. A failure to do so, without lawful excuse, undermines authority and discipline within the unit. This explains the particular emphasis given general and specific deterrence in such cases.9

11. The unique requirements of military society and the need to maintain a disciplined armed force do not always require a more severe penalty than would be appropriate in civilian life. This is particularly true at the summary trial level where a high degree of emphasis is placed on rehabilitating offenders found guilty of minor disciplinary infractions.10 While the punishment of detention was introduced in 1906 at the summary trial level as an alternative to imprisonment, it was intended to be rehabilitative in nature, and was to be given to those personnel who were to be retained in the armed forces.11

12. Generally, the most appropriate punishment is the least required to maintain discipline. The punishment must be appropriate to both the offence and the offender and serve as an adequate deterrent to the accused and others who may be tempted to commit similar offences.12

SECTION 3 - SENTENCING PROCEDURE

Factors to be considered

13. When an accused is found guilty the presiding officer shall receive any evidence concerning the appropriate sentence to be imposed, including aggravating and mitigating factors.13 The factors which should be considered when considering sentence include:

  1. the deterrent effect of the sentence on the offender and other members, bearing in mind that one of the purposes of summary proceedings is the maintenance of military discipline at both the individual and unit level;
  2. the number, gravity and prevalence of the offences committed;
  3. the degree of premeditation and the consequential harm caused;
  4. the degree of provocation and any other extenuating circumstances;
  5. any time spent in custody prior to or during trial;
  6. where applicable, any sentence imposed on a co-accused or accomplice;
  7. the need for consistency in sentencing, having regard to punishments imposed on other offenders;
  8. the offender's circumstances and previous character including his age, rank, length of service, rate of pay and financial situation, family and personal problems, background, training and experience in the Canadian Forces having regard to his military record and in particular any previous convictions, honours, awards, medals and decorations; and
  9. any indirect consequence of the finding or sentence.14

14. In considering any administrative action which has been or which may be taken, it must be remembered that the imposition of a disciplinary punishment and the taking of administrative action in respect of the same incident does not constitute double jeopardy. The term double jeopardy refers to someone being placed in jeopardy under the criminal law twice for the same matter.15 Administrative sanctions relate to the military service of a member.

15. Put in a civilian context a foreman may be found stealing from a warehouse. The company may choose to terminate the employment of the foreman, while a civilian criminal court may decide to impose a fine and a probationary sentence. The fact that in the military the representative of the employer is also often the presiding officer at a summary trial sometimes causes confusion regarding the interaction between administrative and disciplinary action.

16. Administrative action, such as a recorded warning or counselling and probation, is not a substitute for disciplinary action, nor do such sanctions preclude it.16 The administrative action taken may include consideration of a pattern of conduct and overall job performance, while the sentence passed at a summary trial relates to the specific offence(s) for which the member has been convicted, including any aggravating or mitigating circumstances.

Trial Procedure

17. The offender may present evidence, testify and question each witness about any matter concerning the sentence. During the presentation of any evidence the presiding officer may also question each witness, including the offender if the offender chooses to testify, on any matter concerning the sentence. The offender may make representations concerning the sentence.17 The assisting officer may assist and speak for the accused during the sentencing phase of the trial.18

18. A presiding officer may receive any evidence that the officer considers to be of assistance and relevant in imposing an appropriate sentence. Guidance on the reception of evidence is found in Chapter 13, Conduct of Summary Trial.

19. A presiding officer trying an accused charged with more than one offence may only pass one sentence in respect of all the charges with which the accused has been found guilty.19

20. The presiding officer will pass sentence in the presence of the offender, the assisting officer and the public.

SECTION 4 - POWERS OF PUNISHMENT

Punishments Generally

21. Under military law the scale of punishments which can be imposed at service tribunals ranges from minor punishments to imprisonment for life.20 The punishments that can be imposed at summary trial are limited to detention, reduction in rank, forfeiture of seniority, severe reprimand, reprimand, fine and minor punishments.

22. The restriction on the available punishments at summary trial reflects both the minor nature of the offences which may be tried at that level, and the intention that presiding officers impose punishments which are primarily corrective in nature.21 Presiding officers' powers of punishment are consistent with the purpose of summary trial proceedings, i.e. contributing to the maintenance of military discipline and efficiency, including reinforcing the habit of discipline at the unit level.22

23. The punishments that are available at summary trial depend upon the type of summary trial and the rank of the offender.

Powers of Punishment of a Superior Commander

24. The powers of punishment of a superior commander are set out in the Table to QR&O 108.26. That Table is reproduced at Annex S.

Powers of Punishment of a Commanding Officer

25. The powers of punishment of a CO are limited to the punishments and subject to the conditions set out in the Table to QR&O 108. 24. That Table is found at Annex T.

Powers of Punishment of a Delegated Officer

26. The powers of punishment of a delegated officer are limited to the punishments and subject to the conditions set out in the Table to QR&O 108.25. That Table is found at Annex U.

27. Even though s. 163(4) of the NDA states that a CO could delegate the authority to impose a punishment of detention not exceeding fourteen days, the power of a delegated officer to impose such a punishment has been restricted by QR&O 108.25. Therefore, the only powers of punishment that a delegated officer can impose are a reprimand, fine, confinement to ship or barracks, extra work and drill, stoppage of leave and caution.

28. In delegating powers of trial and punishment a CO may further limit the types of punishment and the amount of punishment found in the Table to QR&O 108.25. For example, a CO may determine that a delegated officer will not be authorized to impose a reprimand or a fine. This restriction must be in writing and made at the time of the delegation of the CO's powers23.

Types of Punishments at Summary Trial

29. Detention. A CO is the only presiding officer with the authority to impose a punishment of detention. Detention can only be imposed on NCMs of the rank of sergeant and below.24 The maximum period of detention that can be imposed is 30 days.25 The amount of punishment of detention should be expressed in terms of days.26 Before sentencing an offender to detention, the CO must be satisfied that the punishment is both appropriate and essential. It normally should only be used when other lesser punishments have failed to improve the offender's conduct. However, the punishment of detention may also be imposed as means of dealing with a particularly serious incident of misconduct.27

30. In terms of the goals of sentencing, detention primarily incorporates elements of general deterrence, specific deterrence and retribution.

31. In considering the powers of punishment of summary trials as part of its 1997 military justice review, the Special Advisory Group “…heard from the commanders of commands and many other senior officers that it is important to retain this form of punishment, at least as an ultimate deterrent.28 However, it should not be forgotten that detention has, since its inception, been intended to be rehabilitative as well. Therefore, the punishment of detention should never be equated to imprisonment. Nor should the imposition of the punishment of detention be seen as automatic grounds for recommending the release of an offender from the CF.

32. The rehabilitative aspect of the punishment of detention is reflected in the fact that when a NCM above the rank of private is sentenced to detention, the service detainee29 is only deemed, to be reduced to the rank of private for the period of detention30 and will be paid as a private during the period of detention.31

33. Upon release from detention the offender regains the offender's original rank unless also given the punishment of reduction in rank, bearing in mind that the punishment of detention can be combined with the punishments of reduction in rank and a fine.32 In such a case the member would return to the rank to which the offender was reduced at trial.

34. Reduction in Rank. A CO can reduce a sergeant, master corporal or corporal by one substantive rank.33 An appointment to master corporal is not a rank. Therefore, a sergeant who is sentenced to reduction in rank would be reduced to the rank of corporal, whereas a master corporal and corporal would be reduced to the rank of private. An offender who is reduced in rank to private holds the highest classification within that rank.34

35. Where an offender is reduced in rank the offender is eligible to count for incentive pay in the lower rank all qualifying service in the higher rank, together with all previous qualifying service in the lower rank.35 The same conditions are used to determine seniority in rank for promotion purposes.36

36. The punishment of reduction in rank has a long lasting and significant financial impact on the service member. It was for that reason that in 1997 the Special Advisory Group recommended that the punishment of reduction in rank imposed at summary trial be limited to one substantive rank only.37 This limitation is consistent with the principle of sentencing that the punishment must be proportionate to the seriousness of the offence and the moral blameworthiness of the offender. In assessing whether to impose the punishment of reduction in rank the presiding officer should weigh the financial impact of this type of punishment having regard to the seriousness of the offence committed and degree of blameworthiness.

37. The punishment of reduction in rank has not traditionally been viewed as a penal consequence, but rather is a career related disciplinary action designed to maintain professional standards and integrity.38 Therefore the punishment of reduction in rank may be most appropriate where an offender has abused their rank, or has acted in a manner which demonstrates the offender cannot meet the standards of leadership expected at that rank level. For example if a PO2 is convicted under section 95 of the NDA of verbally abusing subordinates, then the punishment of reduction in rank to Leading Seaman may be appropriate in the circumstances. Similarly, the offence of stealing39 by an NCO, particularly where that service member is in a position of trust over financial assets, may justify a loss of rank.

38. In considering an appropriate sentence, concern over the professional and financial impact of the punishment of reduction in rank should not be given inordinate weight in relation to the ultimate objective of maintaining a disciplined armed force. In R v. Lyons40 an MWO, who was the senior NCM in charge of vehicle maintenance and had authority to issue purchase orders for goods and services to civilian suppliers, pled guilty to three charges of "fraudulent acts" and one charge of obstructing justice.41 The CMAC stated the following with respect to the punishment of reduction in rank imposed by the Standing Courts Martial in that case:

Had these offences been committed by a civilian employee, that employee would be subject to discharge for cause. That would be the employer's choice but, if taken, would be unexceptionable given the nature of the offences. The employee would, as the appellant, be entitled to pension benefits. Unlike the appellant, the civilian would lose all entitlement to severance pay, promotion or pay increments attached to that employment. It is true that these losses would not be implicit in the sentence imposed on the civilian but they would be a direct result of the commission of the offence…. On balance the appellant is better off than his civilian counterpart. He still has a job.42

39. Severe Reprimand and Reprimand. A superior commander has the authority to impose the punishment of a severe reprimand or a reprimand on officers below the rank of LCol or NCMs above the rank of sergeant.43 COs and delegated officers may only impose the punishment of a reprimand.44 The punishments of a severe reprimand and a reprimand may be accompanied by the punishment of a fine. A superior commander may impose a severe reprimand or a reprimand to an officer below the rank of lieutenant-colonel or to a NCM above the rank of sergeant.45 COs and delegated officers may impose a reprimand on officer cadets, sergeants, master corporals and corporals.46

40. The punishments of severe reprimand and reprimand primarily reflect the retributive goal of punishment. However these punishments also incorporate both general and specific deterrence. They are punishments which are primarily disciplinary in nature and which are intended to reflect a sanction against misconduct related to the rank and status of the offender. The punishments of a severe reprimand and a reprimand are intended to stand out as a blemish on the career record of the offender. In imposing this punishment recognition should be given to the place which these punishments hold on the scale of punishments. A severe reprimand is higher on the scale of punishments than a reprimand. They are both higher on the scale of punishments than fines and minor punishments. They are not subject to automatic removal from the member's conduct sheet after one year.47

41. Fine. Both superior commanders and COs may impose a fine up to 60% of the offender's monthly basic pay.48 Delegated officers may impose a fine up to 25% of monthly basic pay.49 A fine must be imposed in a stated amount expressed in dollars.

42. The terms of the payment of the fine are in the discretion of the presiding officer who imposes that punishment.50 After a summary trial the presiding officer who conducted the trial may vary the terms of payment.51 In determining the terms of payment of a fine, a presiding officer should have regard to the state of the offender's pay account, and to the extent practical, the financial obligations of the offender.

43. In both the civilian and military justice systems a fine is a common means of dealing with crime. Its popularity can be linked to the fact that a fine involves no expense to the public, no burden on the prison/detention system, no social dislocation and less stigma than other punishments.52 A fine is particularly useful where the goal is to stop an offender from profiting from their misconduct. However, where the presiding officer wishes to impose a punishment that has a longer-term or continuing impact on the accused, the fine may not be the most appropriate punishment.53 The imposition of a fine also may not reflect the seriousness of the offence.

Minor Punishments

44. Minor punishments consist of confinement to ship or barracks, extra work and drill, stoppage of leave, and a caution.54 The imposition of a minor punishment reflects the rehabilitation goal of sentencing. The rationale of a minor punishment is to correct the conduct of an offender who has committed a service offence of a minor nature while allowing that offender to remain a productive member of the unit.55 A superior commander does not have authority to impose a minor punishment.56

45. Confinement to Ship or Barracks. Both COs and delegated officers can impose the punishment of confinement to ship or barracks on officer cadets, master corporals, corporals and privates. A CO may impose a maximum of 21 days punishment while a delegated officer is limited to a maximum of 14 days.57 The punishment of confinement to ship or barracks includes the punishment of extra work and drill for the same term as the term of confinement to ship or barracks.58 Therefore, the defaulter rules for the punishment of extra work and drill apply to an offender undergoing a punishment of confinement to ship or barracks.

46. An NCM undergoing a punishment of confinement to ship or barracks shall not, without the specific permission of the CO, be permitted during the hours the offender is not on duty, to go beyond the limits prescribed by the CO in standing orders.59 Members who do not normally live in quarters may be ordered to do so for the duration of the punishment.

47. The punishment of confinement to ship or barracks may be particularly appropriate where the offender has not been able to demonstrate compliance with the routines of service life. An example of this type of offence is where an offender is absent without leave due to being late for duties. In extreme cases the failure of a member to arrive at a rendez-vous or duty station on time could result in the injury or death of other members of the unit. Therefore, it is extremely important to instil the habit of obedience in respect of time and routine at the earliest stages of military service, and reinforce that habit through appropriate corrective action.

48. Extra Work and Drill. The punishment of extra work and drill is intended to improve an offender's military efficiency and discipline. It may include the performance of normal duties for longer periods than would be required of the offender if the punishment had not been imposed, and other useful work and extra drill, at such times as may be authorized under unit orders, or other military training. The punishment of extra work and drill shall not be carried out on Sunday. However that day shall count toward the completion of the term of punishment.60

49. COs and delegated officers may impose the punishment of extra work and drill on officer cadets, master corporals, corporals and privates. A CO can impose a maximum of 14 days punishment, while a delegated officer is limited to a maximum of 7 days.61

50. Like all punishments the punishment of extra work and drill should be linked to the offence and the deficiency demonstrated by the offender. Extra work and drill is particularly appropriate in circumstances where an offender has displayed poor dress and deportment, or consistently performs duties below standard. At the same time it must be realized that in some training environments the existence of full training schedules may limit the utility of imposing this punishment.

51. The extra work portion of the punishment provides a unique opportunity to have an offender perform community service, bearing in mind that the failure of a member to adequately perform duties, report for duties on time or properly supervise subordinates often places additional burdens on other members of the unit. The extra work portion of the punishment could include extra work details and fatigues such as loading supplies, standing guard, performing cleaning stations or standing additional watches. Extra work could also include acting as part of a work party, or assisting the many volunteers required for the social events that are integral to life in a military community. For example, offenders undergoing the punishment of extra work and drill could be assigned to help out at sporting events or concerts.62

52. The drill portion of the punishment of extra work and drill is particularly relevant in instilling the automatic respect for orders and persons in authority. This may be most appropriately employed when dealing with minor incidents of insubordinate behaviour.63

53. Stoppage of Leave. When the punishment of stoppage of leave is imposed, the offender shall not be granted leave during the term of the sentence, unless in exceptional circumstances authority to do so is granted by the CO.64 During the hours that the offender is not on duty a NCM shall not, without specific permission of the CO, go beyond the geographic limits prescribed by the CO in orders.65 The area contained in the geographic limits to be prescribed by the CO in standing orders must be wide enough to permit the offender to have access to the normal amenities and routine of service life.

54. The punishment of stoppage of leave is particularly effective when used on operational deployments. For example, when an HMC ship is visiting a foreign port, or when a unit is deployed abroad during peace support operations. However, the punishment of stoppage of leave is not to be used as a means to impose a form of confinement to ship or barracks.66

55. The punishment of stoppage of leave only involves a geographic limitation. While it may be appropriate to require a member undergoing a punishment of stoppage of leave during a weekend to report to a specified authority, it would not be appropriate to require the member to report so often that the nature of the punishment was effectively changed to that of confinement to ship or barracks.67

56. COs and delegated officers may impose the punishment of stoppage of leave on officer cadets, sergeants, master corporals, corporals and privates. A CO can impose a maximum punishment of 30 days, while a delegated officer is limited to a maximum of 14 days.68

57. Caution. A caution should be imposed where it is desired to give an offender a formal warning without other punishment.69

58. COs and delegated officers may give a caution to officer cadets, sergeants, master corporals, corporals and privates.70

59. Rules governing minor punishments A CO of a base, unit or element shall ensure that a set of rules for defaulters is issued, that the rules are made known to all defaulters and that those rules are rigidly enforced.71 These rules are a necessary precondition for the administration of minor punishments. The rules allow the CO to tailor a programme of extra work and drill to improve the military efficiency and discipline of members convicted of minor service offences. They also define the geographic limits within which an offender undergoing the punishments of stoppage of leave or confinement to ship or barracks must remain and the routine applicable to offenders serving those punishments.72 COs must exercise care to ensure that the rules that they issue governing the administration of minor punishments are consistent with the provisions respecting the punishments of extra work and drill, confinement to ship or barracks and stoppage of leave.

60. The punishments of confinement to ship or barracks, stoppage of leave and extra work and drill all involve some control over the movements of offenders undergoing punishment. This control over movement must be viewed in a military context.

61. It is an essential part of maintaining discipline that faults be corrected swiftly. The goal is to catch faults when they are relatively minor in nature thereby ensuring a member does not embark on more serious breaches of discipline. The corrective action is often based on the offender repeating an act that was improperly completed until it is done correctly. This re-training is often best carried out in an atmosphere of collective discipline. In other words the reinforcement of military life, routine and drills.

SECTION 5 - SUSPENSION OF THE PUNISHMENT OF DETENTION AT TRIAL

Authority to Suspend

62. Where an offender has been sentenced to a period of detention the CO who imposed that punishment may, at the time of imposition of the detention, suspend the carrying into effect of the punishment.73 A punishment of detention that has been suspended is deemed to be wholly remitted one year after the date that the suspension is ordered, unless the punishment is put into execution prior to the end of that one year period.74

63. The CO of an offender, or any other suspending authority, may at any time while the punishment is suspended direct that the offender be committed to complete the punishment of detention.75 The punishment of detention will then be deemed to commence on the date on which it is put into execution, even if that date causes the punishment to run beyond the year following the original ordering of the sentence.

64. A suspending authority may, at any time while a punishment is suspended, direct the authority empowered to do so to commit the offender and, after the date of the committal order, that punishment ceases to be suspended.76

65. For example, a corporal is sentenced to a period of 30 days detention on 1 February 1999, and the CO suspends that punishment. The offender continues to serve on assigned duties in the rank of corporal.77 However, if before 1 February 2000 the corporal becomes involved in another incident indicating a lack of discipline or other inappropriate conduct, a suspending authority may lift the suspension. The corporal will commence the period of detention at the deemed rank of private for the period of detention. The corporal does not have to be convicted or even charged before the lifting of the suspension. However, the incident resulting in the lifting of the suspension of the punishment of detention should be sufficiently serious to justify such action.

Flexibility in Sentencing

66. Changes to the table of punishments that took place in November 1997 were designed to restructure the scheme of punishments in keeping with the summary trials disciplinary, as opposed to penal, character and to make the various sentencing options available to presiding officers more flexible by broadening their application. The changes to the powers of punishments available to COs included the following:

  1. punishments of confinement to ship or barracks and extra work and drill were made uniformly applicable to MCpls and Cpls and Ptes;
  2. the pre-existing limitations on the amount of a fine when accompanying the punishment of detention were removed (the maximum fine that could previously be imposed in such circumstances was $50, in the case of Sgts, MCpls and Cpls, and $25 in the case of Ptes);
  3. personnel undergoing detention are in effect paid as privates;
  4. punishments were removed (severe reprimand, forfeiture of seniority and extra work and drill not exceeding 2 hours/day); and
  5. the punishment of reduction in rank was limited to one substantive rank.

67. The changes to the powers of punishments available to delegated officers included the following:

  1. punishments of confinement to ship or barracks and extra work and drill were made uniformly applicable to MCpls and Cpls and Ptes;
  2. stoppage of leave maximum reduced from 30 to 14 days;
  3. fine amounts increased from 200.00 to 25% of basic monthly pay; and
  4. punishments were removed (severe reprimand and extra work and drill not exceeding 2 hours/day);

68. Apart from the traditional sentencing choices of incarceration and fines the Criminal Code of Canada provides judges with a number of other sentencing options including:

  1. fine option programs (a period of community service in lieu of paying a fine);
  2. probation (an order compelling an offender to comply with conditions set by the court for a set period of time);
  3. conditional sentences; (sentence of incarceration served in the offender's community i.e.: home); and
  4. intermittent sentences (sentence of incarceration served intermittently i.e.: weekends).

69. These civilian sentencing options are to provide judges with a flexible approach to sentencing that advances the purposes and principles of sentencing in Canadian society; namely, to contribute to respect for the law and the maintenance of a just, peaceful and safe society79.

They are designed to facilitate the supervised reconciliation and reintegration of the accused into society as a productive working member of the community in ways that will not jeopardize public safety, while providing the offender with a sentence that is appropriate to their individual circumstances.

70. Although sentencing in the military justice system also seeks to contribute to contribute to respect for the law and the maintenance of a just, peaceful and safe society, its primary purpose is to ensure effective and efficient enforcement of strict discipline to promote efficiency and high morale. The various sentencing options available at the summary trial level either alone or in combination may be utilized to achieve flexibility in sentencing similar to that available to civilian courts while enforcing the high level of discipline that is so essential to good order and high morale.

71. Examples of sentencing approaches in the summary trial context that are somewhat analogous to the civilian sentencing alternatives are as follows:

  1. the punishments of extra work and drill and confinement to ship or barracks may be considered analogous to fine option programs;
  2. extra work and drill and close unit supervision may be analogous to a conditional sentence; and
  3. a suspended sentence is comparable to probation;

72. In summary, the differences in military sentencing options from civilian sentencing options primarily exist due to the differing needs of a disciplinary system as opposed to a criminal system. However, both systems are capable of a large degree of sentencing flexibility with the judicious use of the available sentencing options.


Footnotes

1 R. v. Lyons, [1987] 2 S.C.R. 309 and R. v. Sweeney (1992), 71 C.C.C. (3d) 82 (B.C.C.A.). For a general review of sentencing principles see E.G. Ewaschuk, Criminal Pleadings and Practice in Canada, 2 ed. (Canada Law Book Co., 1998) at 18-1 to 18-17. Also see C. Ruby, Sentencing 3rd ed. (Toronto: Butterworths, 1994) at 1-20. These purposes and principles of sentencing are reflected in Canadian criminal law in the Criminal Code of Canada, R.S.C. 1985, c. C-46, s. 718, which states:

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

  1. To denounce unlawful conduct;
  2. To deter the offender and other persons from committing offences;
  3. To separate offenders from society, where necessary;
  4. To assist in rehabilitating offenders;
  5. To provide reparations for harm done to victims or to the community; and
  6. To promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.

2 R. v. Pettigrew (1990), 56 C.C.C. (3d) 390 (B.C.C.A.).

3 Reference re: Section 94(2) of the Motor Vehicle Act (1985), 23 C.C.C. (3d) 289 (S.C.C.).

4 Regina v. M. (C.A.) (1996), 105 C.C.C. (3d) 327 (S.C.C.).

5 Genereux v. R. (1992), 60 C.C.C. (3d) 536 (S.C.C.). Per Lamer C.J..

6 R. v. Stewart (1993), 5 C.M.A.R. 205. The need for both general and specific deterrence is reflected in the sentencing guidance provided in QR&O 108.20, Note G.

7 MacKay v. R,. [1980] 2 S.C.R. 371.

8 MacKay v. R., [1980] 2 S.C.R. 371.

9 R. v. Stewart (1993), 5 C.M.A.R. 205.

10 This explains the traditional reliance placed on minor punishments as a rehabilitative tool of discipline at the unit level. See QR&O 104.13 Note B.

11 Manual of Military Law 1914, (London: H.M. Stationary Office, 1914), The Army (Annual) Act, 1913, s. 44, note 7.

12 QR&O 108.20, Note G.

13 QR&O 108.20 (10).

14 QR&O 108.20, Note F.

15 R. v. Riddle, [1980] 1 S.C.R. 380.

16 CFAO 26-17, para. 7.

17 QR&O 108.20 (10).

18 QR&O 108.14(4)(b).

19 NDA s. 148, QR&O 104.15, QR&O 108.20 Note E.

20 NDA s.139(1).

21 Summary Trial Working Group Report, 2 March 1994, Volume I at 87.

22 QR&O 108.02. See also Report of the Special Advisory Group on Military Justice and Military Police Investigation Services (March 25, 1997) at 40. Summary trials are designed for minor service offences, where the likely punishments are not too severe…. The object is to deal with the alleged offences quickly, within the unit, and to return the member to the service of the unit as soon as possible. In essence, the summary trial is designed as an efficient mechanism for the promotion of internal unit discipline.

23 QR&O 108.10(3).

24 NDA s. 142(1), Table to QR&O 108.24, Punishment 1, Column D. Since detention cannot be imposed on commissioned officers, any offence committed by an officer that warrants a loss of liberty should be dealt with by a court martial. In this regard, the punishment of detention imposed on an NCM at a summary trial should not be viewed as an additional obligation for NCMs, but rather an opportunity to receive a punishment which is more rehabilitative in nature than is available for commissioned officers.

25 Table to QR&O 108.24.

26 QR&O 104.09, Note.

27 QR&O 108.20, Note H.

28 Report of the Special Advisory Group on Military Justice and Military Police Investigation Services (March 25, 1997) at 45.

29 NDA, s. 2 defines a "service detainee" as any person “…who is under sentence that includes a punishment of detention imposed on that person pursuant to the Code of Service Discipline.” 

30 NDA, s. 142(2), QR&O 104.09.

31 Table to QR&O 108.24, Punishment number 1, Column F. For an explanation for the forfeiture of pay that would apply to such a member see QR&O 208.30(3).

32 Table to QR&O 108.24, Punishment number 1, Column E.

33 Table to QR&O 108.24, Punishment number 2, Column C.

34 QR&O 104.10(3).

35 QR&O 204.015.

36 QR&O 3.09(3)(b)(ii) and para. 3 of Annex F to CFAO 49-4.

37 Report of the Special Advisory Group on Military Justice and Military Police Investigation Services (March 25, 1997) at p. 48. See also the Report of the Summary Trial Working Group, 2 March 1994 at 106.

38 Summary Trial Working Group Report, 2 March 1994, Volume I at 108. In Landry v. Gaudet, (1992) 95 D.L.R. (4th) 289 the Federal Court Trial Division held that sanctions under The Royal Canadian Mounted Police Act, such as dismissal, demotion and forfeiture of pay were not penal consequences.

39 NDA s. 114.

40 (1993), 5 C.M.A.R. 130.

41 The fraudulent acts were charged under NDA s. 117(f). That offence falls within summary trial jurisdiction. The charge of obstruction of justice contrary to NDA s. 130 and s. 139 of the Criminal Code of Canada does not fall within summary trial jurisdiction. This example is included to emphasize the principles which the CMAC apply regarding the punishment of reduction in rank generally.

42 (1993), 5 C.M.A.R. 130. The Lyons case was quoted with approval in R v. Stewart (1993), 5 C.M.A.R. 205, at 214. See also Matthews v. R . (1992), 5 CMAR 140 and Martin v. R (1995) CMAC 378.

43 Table to QR&O 108.26.

44 Table to QR&O 108.24, Punishment number 3 and Table to QR&O 108.25, Punishment number 1.

45 QR&O 108.12.

46 Table to QR&O 108.24, Punishment number 3, Column D and Table to QR&O 108.25, Punishment number 1, Column D.

47 DAOD 7006-1, Preparation and Maintenance of Conduct Sheets at 5/8.

48 Table to QR&O 108.26 and Table to QR&O 108.24, Punishment number 4, Column C.

49 Table to QR&O 108.25, Punishment number 2, Column C. For calculation of the monthly basic pay of members of the Reserve Force on other than Class "C" Reserve Service, see QR&O 203.065(6).

50 QR&O 108.24 Note B, 108.25 Note B and 108.26 Note B.

51 NDA s. 145 and QR&O 104.12.

52 C. Ruby, Sentencing 4th ed. (Toronto: Butterworths, 1994) at 294, quoting from Alex Samuels, "The fine: The Principles", [1970] Crim. L.R. 201.

53 Where guidance and control are warranted the more "corrective" punishments of detention, confinement to ship or barracks or extra work and drill might be appropriate.

54 NDA, section 146 and QR&O 104.13.

55 QR&O 104.13 Note B.

56 Table to QR&O 108.26.

57 Table to QR&O 108.24, Punishment number 5, Column C and Table to QR&O 108.25, Punishment number 3, Column C.

58 QR&O 108.37(2).

59 QR&O 108.37(1).

60 QR&O 108.35.

61 Tables to QR&O 108.24 Punishment number 6, column C and D, and QR&O 108.25, Punishment number 4, column C and D.

62 In assigning offenders to extra work and drill care should be taken to ensure that the work does not interfere with the regular employment of civilians including public servants.

63 NDA s. 85, QR&O 103.18. In determining an appropriate sentence the degree and type of insubordinate behaviour could be the basis upon which a punishment of confinement to ship or barracks or extra work and drill is imposed. Since extra work and drill is included in the punishment of confinement to ship or barracks the extra routine imposed on living in quarters could be the basis upon which the more severe punishment is imposed.

64 QR&O 108.36(1).

65 QR&O 104.13 Note C.

66 This is particularly important to note in relation to sergeants on whom the punishment of confinement to ship or barracks cannot be imposed.

67 QR&O 104.13 Note D.

68 QR&O 108.24, Punishment number 7 and QR&O 108.25, Punishment number 5.

69 QR&O 108.38.

70 QR&O 108.24, Punishment number 8 and QR&O 108.25, Punishment number 6.

71 QR&O 104.13(3).

72 QR&O 104.13 Note C.

73 NDA s. 215, QR&O 104.14.

74 NDA s. 217(3).

75 NDA s. 218(1).

76 NDA s. 218(1).

77 The corporal continues to serve in that rank while under suspension since the deemed reduction in rank to private only applies while the offender is actually undergoing the punishment of detention. NDA s. 142(2), QR&O 104.09.

79 Criminal Code of Canada, s. 718.

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