COURT MARTIAL Citation: R v Duncan, 2013 CM 2004 Date: 20130205 Docket: 201257 General Court Martial Canadian Forces

Base Esquimalt Victoria, British Columbia, Canada Between: Her Majesty the Queen - and Captain M.R. Duncan, Offender

Before: Commander P.J. Lamont, M.J.

REASONS FOR SENTENCE (Orally) [1] Captain Duncan, in accordance with the finding of the panel of this General Court Martial you have been found guilty contrary to your plea on one charge, a charge of stealing while entrusted by reason of your employment, with the custody of the thing stolen. [2] It now falls to me to determine and to pass a sentence upon you. In so doing I have considered the principles of sentencing that apply in the ordinary courts of criminal jurisdiction in Canada and at courts martial. I have as well considered the facts of the case as disclosed in the evidence heard during the trial and the other evidence and materials submitted during the course of the sentencing hearing, as well as the submissions of counsel, both for the prosecution and for the defence. [3] The principles of sentencing guide the court in the exercise of its discretion in determining a fit and proper sentence in each individual case. The sentence should be

Page 2 broadly commensurate with the gravity of the offence and the blameworthiness or degree of responsibility and character of the offender. The court is guided by the sentences imposed by other courts in previous similar cases, not out of a slavish adherence to precedent, but because it appeals to our common sense of justice that like cases should be treated in similar ways. Nevertheless in imposing sentence the court takes account of the many factors that distinguish the particular case it is dealing with, both the aggravating circumstances that may call for a more severe punishment and the mitigating circumstances that may reduce a sentence. [4] The goals and objectives of sentencing have been expressed in different ways in many previous cases. Generally, they relate to the protection of society, of which, of course, the Canadian Forces is a part, by fostering and maintaining a just, a peaceful, a safe, and a law-abiding community. Importantly, in the context of the Canadian Forces, these objectives include the maintenance of discipline, that habit of obedience which is so necessary to the effectiveness of an armed force. [5] The goals and objectives also include deterrence of the individual so that the conduct of the offender is not repeated and general deterrence so that others will not be led to follow the example of the offender. Other goals include the rehabilitation of the offender, the promotion of a sense of responsibility in the offender, and the denunciation of unlawful behaviour. One or more of these objectives will inevitably predominate in crafting a fit sentence in an individual case, yet it should not be lost sight of that each of these goals calls for the attention of the sentencing court, and a fit and just sentence should reflect an appropriate blending of these goals tailored to the particular circumstances of the case. [6] Section 139 of the National Defence Act prescribes the possible punishments that may be imposed at court martial. Those possible punishments are limited by the provision of the law which creates the offence and provides for a maximum punishment. Only one sentence is imposed upon an offender whether the offender is found guilty of one or more different offences, but the sentence may consist of more than one punishment. It is an important principle that the court should impose the least severe punishment that will maintain discipline. [7] In arriving at the sentence in this case, I have considered the direct and indirect consequences for the offender of the finding of guilt and the sentence I am about to pronounce. [8] Captain Duncan was and remains a Reserve Force officer employed with the Regional Cadet Support Unit Pacific. In this capacity she was entrusted with public funds obtained at her request, which were to be disbursed by an officer on the cadet instructor list to meet the expenses of cadets while they travelled as part of the cadet programme. In June of 2011, Captain Duncan sought and obtained an advance of $15,000 and deposited the same in her personal bank account, a practise which seems to have been permitted at the time. As the deadline approached for her to account for the advance, she had insufficient monies in her account, so on the date of the offence, 22 Sep-

Page 3 tember, she sought and obtained another advance of $15,000 and deposited the same to her account. The panel of this General Court Martial has found that in so doing, she, in fact and in law, stole the monies advanced to her pursuant to this second advance. When she was eventually required to account for the advances, she was substantially short. The advanced amounts have since been repaid in full. [9] On all the evidence I am not satisfied beyond a reasonable doubt that Captain Duncan lied to her supervisor about the disposition of the funds received on the first advance, but I accept the evidence of Lieutenant(N) Meeker that as her supervisor she instructed Captain Duncan not to take the second advance for the Interprovincial Cadet Exchange Programme and that she had told Captain Duncan that she had to account for the first advance. I conclude that Captain Duncan failed to do the accounting because she did not have the money. These findings of fact are all consistent with the finding of the panel. [10] The prosecution submits that a fit sentence in this case calls for a reduction in rank to the rank of lieutenant and a severe reprimand. The prosecutor points to the amount of money involved in the stealing and some evidence, which I accept, of the harmful effect of this conduct of the offender on the unit as a whole. Defence counsel, Major Berntsen, with his customary candour, acknowledges that this submission is not unreasonable, but argues that a severe reprimand alone is the least punishment necessary to restore discipline. [11] There are several mitigating factors in this case relating both to the offence and to the offender. Captain Duncan is a mature woman who has served in the Reserve Force as a part of the cadet organization since 1998 with no previous record of disciplinary infractions known to me. As a Reservist, she is employed on a contract basis and her current contract will expire at the end of next month when she will be required to successfully compete with others to continue in her present position. She is said to be a hard worker who achieves a high standard and seems to have retained the confidence of her employer despite the offence. I accept that she sincerely regrets her actions and has demonstrated responsibility by cooperating with the investigators, by formally apologising to her workmates, and by arranging for and repaying the lost public funds in full reasonably quickly after the discovery of the offence. While this is a case of conversion of public funds in a substantial amount to unauthorized personal use, the conduct did not take place over a lengthy period of time and did not involve other persons to accomplish the criminal purpose. Against these factors I have to weigh the seriousness of the offence of stealing while in a position of trust in regard to the thing stolen. [12] In the 2006 case of Master Corporal Noseworthy, I referred to a passage from Ltourneau J. delivering the reasons of the Court Martial Appeal Court in the case of Private St. Jean in 2000 at CMAC-429:
.... 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 inevita-

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bly 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. Deterrence in such cases does not necessarily entail imprisonment, but it does not per se rule out that possibility even for a first offender. There is no hard and fast rule in this Court that a fraud committed by a member of the Armed Forces against his employer requires a mandatory jail term or cannot automatically deserve imprisonment. Every case depends on its facts and circumstances.

These considerations apply equally to the offence before the court today. The court in the case of St. Jean went on to observe that the offence of stealing while entrusted is more serious than the offence of fraud. [13] In all the circumstances of this case relating both to the offence and to the offender, I consider the punishment of reduction in rank to be most appropriate and necessary to vindicate the sentencing principles of deterrence and denunciation, as well as instilling in the offender a greater sense of responsibility for the management of public funds entrusted to her. As I have observed in other cases, rank is a visible symbol of the trust placed in the member by the Canadian Forces. Together with a severe reprimand, it constitutes the minimum response necessary to restore discipline in the present case. But as I have also noted in other cases, as trust can be lost it can also be regained over time, and rank restored should the offender be afforded the opportunity for continued service. FOR THESE REASONS, THE COURT: [14] SENTENCES the offender, Captain Duncan, to reduction in rank to the rank of lieutenant and to a severe reprimand.

Counsel: Lieutenant-Commander S. Torani, Canadian Military Prosecution Services Counsel for Her Majesty the Queen Lieutenant(N) N. Han, Judge Advocate General/Director of Law Military Personnel Assistant counsel for Her Majesty the Queen Lieutenant(N) K.M. Aubrey-Horvath, Judge Advocate General/Director of Law Operations Assistant counsel for Her Majesty the Queen

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Major D. Berntsen, Directorate of Defence Counsel Services Counsel for Captain M.R. Duncan