Impact of administrative release from forces on adequacy and enforceability of sentences

In R. v. Tupper, 2009 CMAC 5, the sentencing court imposed a detention for a period of 90 days and ordered the dismissal of the accused from the Canadian Forces. However, while the accused's appeal against his sentence was pending, the military authorities administratively released him from the Canadian Forces, thereby putting in jeopardy the enforceability of the detention sentence and the order of dismissal.

As detention is a punishment reserved for soldiers, the CMAC ruled that the accused could no longer be subjected to such punishment as he was no longer a soldier. In addition he could not subsequently be released from the Forces since he was already out of the Forces: see par. 67 of the decision. The CMAC acknowledged the authorities' power to proceed to an administrative release, but also pointed out that it may entail consequences on the enforceability of a given sentence: see par. 71 to 75 of the decision.

Although the CMAC found the sentence to be fit, the majority of the panel "set aside the punishments of dismissal and detention as they were inoperative following the appellant's administrative release from the Canadian Forces". The dissenting member of the panel would have upheld the sentence, required the accused to serve his sentence of detention and would have recorded that he had been dismissed from the Forces.

I confess that I have some difficulty with this idea of compelling a now civilian to serve his period of detention in view of the fact that the focus of detention is on training and discipline in order to reinsert the accused in his unit and make him operational. While I say that, I believe it would have been preferable for the majority to uphold the sentence rather than set it aside and then declare that, in the circumstances, it was unenforceable as a result of the administrative authorities' decision to release him from the Forces. In this way the denunciatory aspect and the general deterrence of the sentence would have been maintained while at the same time the negative impact of the administrative release on the sentence would have been acknowledged.

Pursuant to Tupper, the CMAC was seized with another case of administrative release, but this time the release taking place even before the passing of the sentence by the court martial: see St-Onge v. R., CMAC 7. In view of the previous decision one is left to wonder why the authorities would proceed to a release before the passing of the sentence. The sentencing judge imposed a 30 day-period of imprisonment. The majority of the panel found that, in the circumstances, the military judge "did not establish that a term of imprisonment was the most appropriate and least intrusive sanction, having regard to the fact that the appellant had previously been released from the Canadian Forces on an administrative basis": see par. 65 of the decision. The majority substituted a fine of $3000. The dissenting judge felt compelled by the Supreme Court of Canada's jurisprudence which requires  the reviewing court to pay great deference to the sentencing judge.

The case went to the Supreme Court of Canada: R. v. St-Onge 2011 SCC 16. In four short paragraphs the SCC endorsed the dissenting opinion and restored the initial decision.

I think the two decisions can be distinguished because of the nature of the sentence passed. Imprisonment in the second decision is also a civilian option while detention is not by its very nature in the military context. It would have been helpful though if the Supreme Court had issued a warning that administrative release prior to sentencing or pending appeal may entail consequences on the sentence passed or to come.