R. v. Rutherford, 2018 CM 2022

COURT MARTIAL Citation: R. v. Rutherford , 2018 CM 2022 Date: 20180717 Docket: 201763 Standing Court Martial St-Jean Garrison St-Jean-sur-Richelieu, Quebec, Canada Between: Her Majesty the Queen - and - Aviator B. Rutherford, Offender Before: Commander S.M. Sukstorf, M.J. REASONS FOR SENTENCE Restriction on Publication: By court order made under

section 179 of the National Defence Act and

section 486.5(1) of the Criminal Code , information that could disclose the identity of the person described during these proceedings as the complainant shall not be published in any document or broadcast or transmitted in any way. (Orally) Introduction [ 1 ] Today, Aviator Rutherford admitted his guilt to six charges on the charge sheet:

“First charge

Section 93 N.D.A. BEHAVED IN A DISGRACEFUL MANNER Particulars : In that he, between 5 and 11 September 2016, at the Canadian Forces Leadership and Recruit School, Saint-Jean-sur-Richelieu, province of Quebec, reached into B.J.’s brassiere without her consent. Second charge

Section 130 N.D.A. AN OFFENCE PUNISHABLE UNDER

SECTION 130 OF THE NATIONAL DEFENCE ACT , THAT IS TO SAY, ASSAULT, CONTRARY TO

SECTION 266 OF THE CRIMINAL CODE Particulars : In that he, between 5 and 11 September 2016, at the Canadian Forces Leadership and Recruit School, Saint-Jean-sur-Richelieu, province of Quebec, pulled B.J. to the ground by her hair. Third charge

Section 93 N.D.A. BEHAVED IN A DISGRACEFUL MANNER Particulars : In that he, on or about 12 September 2016, at the Canadian Forces Leadership and Recruit School, Saint-Jean-sur-Richelieu, province of Quebec, rubbed his genitals on B.J.’s buttocks without her consent. Fourth charge

Section 130 N.D.A. AN OFFENCE PUNISHABLE UNDER

SECTION 130 OF THE NATIONAL DEFENCE ACT , THAT IS TO SAY, ASSAULT, CONTRARY TO

SECTION 266 OF THE CRIMINAL CODE Particulars : In that he, between 12 and 18 September 2016, at the Canadian Forces Leadership and Recruit School, Saint-Jean-sur-Richelieu, province of Quebec, pushed B.J. against a wall. Fifth charge

Section 130 N.D.A. AN OFFENCE PUNISHABLE UNDER

SECTION 130 OF THE NATIONAL DEFENCE ACT , THAT IS TO SAY, ASSAULT, CONTRARY TO

SECTION 266 OF THE CRIMINAL CODE Particulars : In that he, on or about 16 September 2016, at the Canadian Forces Leadership and Recruit Scholl, Saint-Jean-sur-Richelieu, province of Quebec, held B.J. against her will. Sixth charge

Section 130 N.D.A. AN OFFENCE PUNISHABLE UNDER

SECTION 130 OF THE NATIONAL DEFENCE ACT , THAT IS TO SAY, ASSAULT, CONTRARY TO

SECTION 266 OF THE CRIMINAL CODE Particulars : In that he, between 12 and 18 September 2016, at the Canadian Forces Leadership and Recruit School, Saint-Jean-sur-Richelieu, province of Quebec, pushed B.J.” [ 2 ] Having accepted and recorded his pleas of guilty with respect to the above six charges, the court must now determine and pass sentence on those charges. The evidence before this Court includes a Statement of Circumstances, which reads as follows: “ STATEMENT OF CIRCUMSTANCES 1. At all material times, Aviator Rutherford was a member of the regular force of the Canadian Armed Forces, and posted to CFLRS. 2. Avr Rutherford and B.J. were in the same platoon, and initially were friends.

3. Towards the end of the first week of training, Avr Rutherford began to touch B.J. when their paths crossed. 4. In the second week of training, Avr Rutherford placed ice cubes down B.J.’s top, and without her permission put his hand in her brassiere to remove the ice cubes. 5. In that same week, Avr Rutherford forcefully grabbed and pulled B.J.’s hair to the point that she fell to the ground. 6.

At the start of the third week of training, while B.J. was helping Avr Rutherford to make his bed, Avr Rutherford approached B.J. from behind, and placing his hands on her lower back, moved his pelvis to her buttocks such that B.J. could feel his genitals against her. Avr Rutherford then said: “I like you like this. I like you bent over.” 7. Towards the middle of the third week of training, Avr Rutherford grabbed B.J. and pushed her against a wall. He placed his hands above B.J.’s head and said: “I like to be in control. I like it because you weren’t fighting back.” 8.

Friday evening of the third week of training, B.J. was in Avr Rutherford’s cubicle at his request and to find out how his injured foot was doing. Avr Rutherford pushed her, and said: “You know you like it.” B.J. expressed her disagreement with this behaviour, and Avr Rutherford caught her from behind. Placing his arms around her, they fell to the bed. Avr Rutherford held B.J. with one hand and tickled her with the other. B.J. told him: “Stop. I don’t like it. Let me go.” To free herself, B.J. gave a kick to Avr Rutherford’s injured foot and an elbow strike in his stomach. 9.

At the end of the third week of training, B.J. was helping Pte Pole to make his bed with the help of a ruler borrowed from Avr Rutherford. Avr Rutherford came to retrieve his ruler, and when B.J. tried to give it to him, he pushed her with both hands. B.J. fell, striking Pte Pole in her fall.” [ 3 ] An Agreed Statement of Facts was also entered as evidence, which reads as follows: “ AGREED STATEMENT OF FACTS 1. Avr Rutherford has been a member of the Canadian Armed Forces since 2016. At the time of the offences, he was in a training platoon at the Canadian Forces Leadership and Recruit School. 2.

Avr Rutherford was first arrested for assault by the military police on 19 September 2016. He was released by a custody review officer on condition that he remain under military authority, stay away from the complainant in a perimeter of 100 meters, refrain from communicating with members of R0169E, keep the peace and be of good behavior, not possess unless under Canadian Forces supervision, until dealt with according to law, any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance. 3.

Avr Rutherford was removed from his training platoon. 4. On 24 January 2017, Avr Rutherford was formally charged when he was served with a Record of Disciplinary Proceedings. 5. Following a new statement by the complainant on 22 March 2017, the file was transferred to the Canadian Forces National Investigation Service (NIS). 6. Following the NIS investigation, new charges were laid against Avr Rutherford on 16 August 2017. 7. The events that B.J. experienced had an impact on her life.

She sees mental health and her unit padre to discuss and help her get through the events.” Joint submission [ 4 ] In a joint submission, counsel recommend that the court impose a sentence of a severe reprimand with the accompanying military punishment of dismissal from Her Majesty’s service.

[ 5 ] This joint submission before the court is reviewed in the context of the current Supreme Court of Canada (SCC) guidance in R. v. Anthony-Cook , 2016 SCC 43 . In that decision, the SCC clarified that a trial judge must impose the sentence recommended in a joint submission “unless the proposed sentence would bring the administration of justice into disrepute, or is otherwise not in the public interest.” [ 6 ] By entering into a plea bargain, the constitutional right to be presumed innocent is given up and this should never be done lightly.

In fact, by virtue of the oath taken by all service members, this right is one we all stand to protect. Thus, in exchange for making a guilty plea, the accused must be assured of a high level of certainty that the court will accept the joint submission. [ 7 ] As members of the legal profession, both the prosecution and defence counsel are accountable to their respective law societies and the court relies heavily on their professionalism, honesty and judgement.

The prosecutor who proposes the sentence is aware of the needs of the military and its surrounding community and is responsible for representing those interests. He will have been in contact with the member’s unit as well as the victim. Defence counsel, Lieutenant(

N) Tremblay acts exclusively in the accused’s best interest, which, in this case, ensures that the accused’s guilty pleas are voluntary, informed and unequivocally acknowledge his guilt. Evidence [ 8 ] In this case, the prosecutor read the Statement of Circumstances and then provided the documents required under Queen’s Regulations and Orders for the Canadian Forces

article 112.51 that were supplied by the chain of command. In addition, an Agreed Statement of Facts was introduced so that the Court could be informed of the facts specific to the personal circumstances of Aviator Rutherford. [ 9 ] Further, the Court benefitted from a Victim Impact Statement (VIS) which the victim courageously presented to the Court. She explained that although she and Aviator Rutherford were originally friends, he consistently pushed the boundaries of that friendship to the point where she felt unsafe and uncomfortable.

She has repeatedly questioned herself about the events that took place and questioned whether or not, she did the right thing by reporting the incidents. She gets nervous or jumpy and feels that because of the internal battle she faced, she has had relationships ruined and friendships strained. She is hoping for resolution in knowing that Aviator Rutherford understands that his conduct crossed acceptable boundaries. The offender [ 10 ] Aviator Rutherford is 28 years old. He enrolled in August 2016 and he has no previous conduct or criminal record for the Court to consider.

Prior to joining the Canadian Armed Forces (CAF), he earned a diploma as a computer technician and worked as a printer technician. His counsel noted that the incidents before the Court appear to be isolated and inconsistent with his previous conduct. [ 11 ] As noted in the Agreed Statement of Facts, Aviator Rutherford has been under strict military conditions since September, 2016. His defence counsel noted that upon speaking with the offender, he immediately expressed his willingness to accept responsibility for his conduct.

This is a positive sign as it demonstrates his recognition that his conduct was unacceptable in both a military context and in society at large. Objectives of sentencing to be emphasized in this case [ 12 ] The prosecution and defence both emphasized that, in their negotiations, they considered the objectives of sentencing and, in particular, they considered the objectives of general and specific deterrence as well as denunciation to be paramount. On the facts before the Court, I agree with their assessment.

Parity [ 13 ] Under the principles of sentencing, the law requires that the sentence imposed be similar to sentences imposed on similar

offenders for similar offences committed in similar circumstances. [ 14 ] In making his recommendation on sentence, the prosecution relied upon a significant number of precedents which the Court reviewed. They include R. v. Cooper , 2018 CM 2014 , R v Yurczyszyn , 2014 CM 2005 , R. v. Wellowszky , 2016 CM 1011 and R. v. McCabe and Gibson , 2010 CM 2008 . In short, based on the type of punishment given for similar offences, the sentence proposed does fall within an acceptable range. [ 15 ] In the military justice system, as well as under paragraph 718.2 (

a) of the Criminal Code , the principles of sentencing require that a sentence be increased or reduced to account for any aggravating or mitigating circumstances relating to the offence or the offender. Based on the balancing of these circumstances, and in a case such as this where there is evidence of very positive rehabilitative efforts by the offender, the court must consider this in reducing the sentence. Aggravating factors [ 16 ] After hearing the submissions of counsel, the Court highlights the following aggravating factors for the record: (

a) Impact on victim – As heard in the VIS, Aviator Rutherford was originally friends with the victim when he began to repeatedly test the boundaries of that friendship by increasingly engaging in conduct that crossed the line as it offended, disrespected and breached the trust of his colleague; and (

b) Training environment – The incidents occurred in a training environment where the students were specifically learning about the importance of trust, collaboration and respect that are necessary within a military force. Mitigating factors [ 17 ] After hearing the submissions of counsel, the Court highlights the following mitigating factors for the record: (

a) Guilty plea – Aviator Rutherford’s plea of guilty for these offences, as described in the Statement of Circumstances, must be given their full weight. He saved the Court and counsel considerable time. As I briefly mentioned earlier, his guilty plea reflects not just his willingness to assume responsibility, but most importantly, it reflects that he recognizes that his actions crossed the line of acceptable conduct; (

b) Previous good conduct and age - The Court recognizes that Aviator Rutherford has no previous record to consider. Aviator Rutherford is a young man with a great deal of potential still ahead of him; (

c) Delay - The Court noted that we are now two years post offence and that the offender has been subjected to restrictive release conditions for two years; [ 18 ] It is absolutely imperative that members in the CAF community understand that any behaviour that is disrespectful, undermines the trust, confidence and morale of others will not be tolerated. The military justice system is well prepared to address disciplinary shortcomings. For example, Parliament legislated the

section 93 offence into the National Defence Act ( NDA ) to ensure that disgraceful conduct that does not fit within the type of conduct prescribed in the Criminal Code can be appropriately addressed. The essence of the

section 93 offence is to denounce conduct that rises to the level where the reasonable person considers the conduct to be “shockingly unacceptable.” Aviator Rutherford’s guilty plea to offences under

section 130 of the NDA (for an offence contrary to

section 266 of the Criminal Code – Assault) as well as under

section 93 for behaving in a disgraceful manner are significant. [ 19 ] It also takes significant courage for a victim or complainant to come forward to his or her chain of command to report conduct that has made him or her feel uncomfortable and the Court acknowledges this.

[ 20 ] The Court is hopeful that both the victim and Aviator Rutherford can now put the incidents behind them and successfully move on with their lives. You both have a great deal of potential and you will have learned stark lessons from these incidents. The sentence Dismissal [ 21 ] As the prosecution referred to this Court’s comments in the case of Cooper , I will reiterate that the punishment of dismissal is one of the harshest sentences available to a military judge.

It is a punishment that signifies that a serving CAF member has failed to meet the standard expected of him or her and, as such, that member is no longer worthy of wearing the uniform and continuing his or her service within the CAF. [ 22 ] Importantly, such a sentence sends one of the strongest messages possible of deterrence and denunciation to the military community, demonstrating the consequence of engaging in conduct that breaches the trust that Canadians expect in its serving military members. [ 23 ] In all aspects of military service, trust is paramount and provides a pillar upon which we serve.

In this case, Aviator Rutherford betrayed the trust of his colleague in arms, someone with whom he was serving, and someone who saw him as a friend. In short, he assaulted her four times and behaved in a disgraceful manner on two other occasions. More specifically, the sentence of dismissal sends the message that the CAF has lost confidence in Aviator Rutherford and his service is no longer considered reliable nor valuable. Reprimand [ 24 ] The imposition of a severe reprimand for these offences will be on his criminal record and will serve as a personal reminder of the consequences of his reprehensible conduct.

Consideration of weapons prohibition order [ 25 ] Since Aviator Rutherford pleaded guilty to four offences of assault, which is an offence considered to be

an act of violence, pursuant to paragraph 147.1(

a) of the NDA , this Court must consider whether it is desirable, in the interests of the safety of the person or of any other person, to make a weapons prohibition order. [ 26 ] The Court agrees with the prosecution’s position that such an order is neither desirable nor necessary for the safety of the offender or any other person and exercises its discretion not to make an order to that effect.

Conclusion [ 27 ] Considering all of the factors, the circumstances of the offence and of the offender, the indirect consequence of the finding or the sentence, the gravity of the offence and the previous character of the offender, I am satisfied that counsel have discharged their obligations in making their joint submission. The punishment of dismissal and a severe reprimand sends a message that this type of conduct will not be tolerated in the CAF and clearly establishes significant consequences for doing so.

The recommended sentence is in the public interest and does not bring the administration of justice into disrepute. FOR THESE REASONS, THE COURT:

[ 28 ] FINDS you guilty of charges 1, 2, 3, 4, 5 and 6. [ 29 ] SENTENCES you to dismissal from Her Majesty’s service and a severe reprimand. Counsel: The Director of Military Prosecutions as represented by Major M.-A. Ferron Lieutenant (

N) J.-M.J.D. Tremblay, Defence Counsel Services, Counsel for Aviator B. Rutherford