Docket: CMAC-422
CORAM: HUGESSEN
MARCEAU
DURAND, JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
- and -
LIEUTENANT-COLONEL R. VANIER
Respondent
Hearing held in Ottawa, Ontario, Wednesday, February 17, 1999.
JUDGMENT rendered in Ottawa, Ontario, Wednesday, February 17, 1999.
REASONS FOR JUDGMENT OF THE COURT BY: HUGESSEN J.A.
Docket: CACM-422
CORAM: HUGESSEN
MARCEAU
DURAND, JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
- and -
LIEUTENANT-COLONEL RENO VANIER
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Rendered at the hearing in Ottawa, Ontario,
Wednesday, February 17, 1999)
HUGESSEN J.A.
[1] The accused was judged by a
[1] The accused was judged by a General Court Martial and convicted of seven charges worded as
follows:
FIRST CHARGE:
Section 130 NDA
AN ACT PUNISHABLE UNDER SECTION 130 OF THE NATIONAL DEFENCE ACT, THAT IS TO SAY, BEING AN OFFICIAL OF THE GOVERNMENT OF CANADA DID ACCEPT A BENEFIT FROM A PERSON HAVING DEALINGS WITH THE GOVERNMENT OF CANADA, CONTRARY TO SECTION 121(1)(C) OF THE CRIMINAL CODE OF CANADA
Particulars: IN THAT HE, between 10 July 1996 and 1 September 1996, at or near Port-au-Prince Haiti, being an official of the government of Canada did, for his benefit and without the consent in writing of the head of the branch of that government that employs him, accept a benefit in the form of airline travel for himself, his wife Nina Vanier and his daughter Natasha Vanier, valued at approximately $2,000.00, from Mr. Richard Aoun, President of Militour International Inc., a person having dealings with the government of Canada.
SECOND CHARGE:
Section 130 NDA
AN ACT PUNISHABLE UNDER SECTION 130 OF THE NATIONAL DEFENCE ACT, THAT IS TO SAY, FRAUDULENT CONCEALMENT, CONTRARY TO SECTION 341 OF THE CRIMINAL CODE OF CANADA
Particulars: IN THAT HE, on or about 9 July 1996, at or near Port-au-Prince, Haiti, did for a fraudulent purpose obtain airline tickets from Militour International Inc., to wit American Airlines tickets number 6881127206 and 6881127207 in favour of his wife Nina Vanier and his daughter Natasha Vanier in the amount of $1,347.00 respectively.
THIRD
CHARGE:
Section 130 NDA
AN ACT PUNISHABLE UNDER SECTION 130 OF THE NATIONAL DEFENCE ACT, THAT IS TO SAY, FRAUD, CONTRARY TO SECTION 380(1)(B) OF THE CRIMINAL CODE OF CANADA
Particulars: IN THAT HE, on or about 16 September 1996, at or near Port-au-Prince, Haiti, did by deceit, falsehood or other fraudulent means defraud Her Majesty in Right of Canada, as represented by the Department of National Defence, of the sum of $2,694.00 by substantiating a General Allowance Claim (form CF52) for Family Reunion Travel with American Airlines tickets which were not paid for and which were never intended to be used.
FOURTH
CHARGE:
Section 130 NDA
AN ACT PUNISHABLE UNDER SECTION 130 OF THE NATIONAL DEFENCE ACT, THAT IS TO SAY, FRAUDULENT CONCEALMENT, CONTRARY TO SECTION 341 OF THE CRIMINAL CODE OF CANADA
Particulars: IN THAT HE, on or about 15 November 1996, at or near Port-au-Prince, Haiti, did for a fraudulent purpose conceal not having paid for the air travel he was claiming for his wife Nina Vanier and daughter Natasha Vanier under the Family Reunion Travel entitlement by providing the endorsed copy of the cheque number 129, dated 28 August 1996, in the amount of $2,694.00 to Maj Miville Deschenes of the office of the Director Special Examination and Inquiries.
FIFTH
CHARGE:
Section 130 NDA
AN ACT PUNISHABLE UNDER SECTION 130 OF THE NATIONAL DEFENCE ACT, THAT IS TO SAY, FRAUDULENT CONCEALMENT, CONTRARY TO SECTION 341 OF THE CRIMINAL CODE OF CANADA
Particulars: IN THAT HE, on or about 23 September 1996, at or near Port-au-Prince, Haiti, did for a fraudulent purpose obtain an invoice from Militour International Inc. to wit invoice number 002002 dated 28 August 1996 for travel arrangements in the amount of $4,575.49.
SIXTH
CHARGE:
Section 130 NDA
AN ACT PUNISHABLE UNDER SECTION 130 OF THE NATIONAL DEFENCE ACT, THAT IS TO SAY, FRAUDULENT CONCEALMENT, CONTRARY TO SECTION 341 OF THE CRIMINAL CODE OF CANADA
Particulars: IN THAT HE, on or about 2 October 1996, at or near Port-au-Prince, Haiti, did for a fraudulent purpose obtain an invoice from Militour International Inc. to wit invoice number 001532 dated 2 October 1996 for travel arrangements in the amount of $2,694.00
...
EIGHTH
CHARGE:
Section 90 NDA
IN THAT HE, between 09 June 1997 and 20 June 1997, without authority absented himself from National Defence Headquarters, Ottawa, Ontario.
[2] The verdict on count number 3 was annotated as follows:
...except that he did not defraud of the sum of two thousand six hundred and ninety dollars but of a lesser amount equivalent to his FRT entitlement as described in DCBA 6-6161 211900Z May 96 (Exhibit 14).
[3] The accused was sentenced by the Court Martial to a reduction in rank to lieutenant- colonel and fined $10,000.
[4] The Crown is requesting leave to appeal this sentence and, if leave is granted, appeals it.
[5] We are all of the opinion that this appeal should fail.
[6] First, the prosecution has failed to persuade us that the learned Judge-Advocate erred in law in any way whatsoever in his instructions to the members of the Court on the question of the sentence. On the contrary, the Judge-Advocate carefully summarized the submissions by both parties and listed all of the factors that the Court had to take into consideration. In particular, he mentioned the fact that the accused held a senior rank in the Canadian Forces and that his position was one of responsibility and trust. He even stated that, in his opinion, the circumstances of the case warranted a sentence of a deterrent nature and he cited in this regard the words of the prosecuting attorney, who was requesting a sentence of imprisonment. In the circumstances, it cannot be said that the members of the Court were unaware of the fact that they might accede to the prosecution request and pronounce a jail sentence.
[7] Second, nothing in the circumstances of this case or in the nature of the crimes of which the accused has been convicted necessitates, as a question of law, a minimum sentence of imprisonment. It is all very well for the prosecution counsel to draw attention to this Court's judgment in Seward,[1] but there is substantial latitude between the circumstances of that case and those of the case at bar. Let us note particularly that in Seward a man had died, while no such thing happened in this case. Furthermore, it is clear by the very words of the annotated verdict that the members of the Court were of the opinion that the accused had defrauded Her Majesty of no more than an amount he was legitimately entitled to claim.
[8] Finally, it seems to us that the members of the General Court Martial, who were all officers of senior rank in the Canadian Armed Forces, were particularly well placed to assess both the severity of the sentence they were pronouncing and the impact that this sentence might have on the maintenance of good order and discipline within the forces. They could also assess, as they were required to do, the direct and indirect impact not only of the sentence they were imposing but also of the one the prosecution was asking them to impose. We are unable to say that they erred in law.
[9] Accordingly, leave to appeal will be granted, but the appeal itself will be dismissed.
James K, Hugessen
J.A.
Certified true translation
Bernard Olivier
COURT MARTIAL APPEAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE NO: CMAC-422
STYLE: Her Majesty the Queen v.
Lieutenant-Colonel R. Vanier
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: February 17, 1999
REASONS FOR JUDGMENT OF THE COURT: (Hugessen, Marceau, Durand, JJ.A.)
RENDERED AT THE HEARING BY: Hugessen, J.A.
APPEARANCES:
Lt-Colonel Mario Dutil for the appellant
Major Louis MacKay
Major R.W. Callan for the respondent
Lt-Colonel Denis Couture
SOLICITORS OF RECORD:
Office of the Judge Advocate General for the appellant
Department of National Defence
Ottawa, Ontario
Director of Law for the respondent
National Defence Headquarters
Ottawa, Ontario