R. v. Florian-Rodriguez, 2018 CM 3007

COURT MARTIAL Citation : R. v. Florian-Rodriguez , 2018 CM 3007 Date : 20180409 Docket : 201750 Standing Court Martial Halifax Courtroom Halifax, Nova Scotia, Canada Between : Her Majesty the Queen and - Ordinary Seaman A.F. Florian-Rodriguez, Offender Before : Lieutenant-Colonel L.-V. d’Auteuil, M.J. Restriction on Publication: By court order, pursuant to

section 179 of the National Defence Act and

section 486.4 of the Criminal Code , directs that any information that could identify anyone described in these proceedings as the complainant, Ordinary Seaman J.S. shall not be published in any document or broadcast or transmitted in any way. REASONS FOR SENTENCE (Orally) [ 1 ] Ordinary Seaman Florian-Rodriguez pleaded guilty to the second and fourth charges on the charge sheet as follows: SECOND CHARGE

Section 93 of the National Defence Act BEHAVED IN A DISGRACEFUL MANNER Particulars: In that he, between 26 March 2016 to 16 April 2016, at or near CFB Halifax, touched J.S.’s at the waist area, without her consent.

FOURTH CHARGE

Section 129 of the National Defence Act CONDUCT TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE Particulars : In that he, between 22 March 2016 and 19 April 2016, at or near CFB Halifax, while on course with her, called OS Proctor, a “cunt”, a “bitch”, a “punta”, a “slut” or a “whore”, or words to that effect. He was also found not guilty of the first and fifth charges on the charge sheet, further to the prosecution stating that he has no evidence to present. The third charge was withdrawn by the prosecution prior to the start of the proceedings.

Concerning the second and fourth charges, the Court accepted and recorded your plea of guilty and now finds you guilty of these charges. [ 2 ] In this case, the prosecutor and the offender’s defence counsel made a joint submission on sentence to be imposed by this Court. They recommended that this Court sentence you to a severe reprimand and a fine in the amount of $2,000. [ 3 ] In the particular context of an armed force, the military justice system constitutes the ultimate means of enforcing discipline, which is a fundamental element of military activity in the Canadian Armed Forces (CAF).

The purpose of this system is to prevent misconduct, or in a more positive way, promote good conduct. It is through discipline that an armed force ensures that its members accomplish in a trusting and reliable manner successful missions. The military justice system also ensures that public order is maintained and that those subject to the Code of Service Discipline are punished in the same way as any other persons living in Canada. [ 4 ] The evidence before this Court includes a Statement of Circumstances, which goes as follows: STATEMENT OF CIRCUMSTANCES 1.

At all material times, Ordinary Seaman Florian-Rodriguez was a member of the Reserve Force, Canadian Armed Forces, attached posted to the Canadian Forces Naval Operations School (CFNOS). CIRCUMSTANCES OF THE OFFENCE AGAINST OS J.S. 2. Between 22 March 2016 and 19 April 2016, Ordinary Seaman Florian-Rodriguez and Ordinary Seaman J.S were both candidates on their BOSN QL3 course conducted on CFB Halifax. During the course, they both resided in different sections of an accommodation building on CFB Halifax, Stadacona, known as “A” Block. 3.

On some occasions, Ordinary Seaman J.S attended room, #254, “A” Block, to visit Ordinary Seaman Guzman-Moreno and Ordinary Seaman Florian-Rodriguez who were roommates. One such visit occurred on, or about, 9 Apr 2016 . 4. Shortly after her arrival on that day, Ordinary Seaman Guzman-Moreno departed the room to shower. The door shut behind him and automatically locked. After he left Ordinary Seaman Florian-Rodriguez began counting out loud. Ordinary Seaman J.S. asked Ordinary Seaman Florian-Rodriguez why he was counting.

He stated that his roommate typically comes back within 30 seconds when he forgets something, 5. After about thirty seconds Ordinary Seaman Florian-Rodriguez approached Ordinary Seaman J.S. while she was on Ordinary Seaman Guzman-Moreno's bed. 6. He climbed on top of her and pinned both her wrists to the bed above her head. He then moved her top up and attempted to open the waist band of her leggings in order to touch her within her pants. 7. She managed to fight him off, while at the same time was asking him to stop. At that point, they both heard Ordinary Seaman

Guzman-Moreno placing his keys in the door. Ordinary Seaman Florian-Rodriguez immediately jumped off her and rushed back to his own bed. 8. Without disclosing to Ordinary Seaman Guzman-Moreno what had just occurred, Ordinary Seaman J.S. immediately departed the room. 9. Ordinary Seaman J.S. did not consent to the physical contact initiated by Ordinary Seaman Florian-Rodriguez, which he had initiated for a sexual purpose. CIRCUMSTANCES OF THE OFFENCE AGAINST OS PROCTOR 10. Ordinary Seaman Florian-Rodriguez and Ordinary Seaman Proctor first met each other on basic training during the summer of 2015.

Between 22 March 2016 and 19 April 2016, they were both candidates on their BOSN QL3 course conducted on CFB Halifax. 11. On multiple occasions, in the course’s classroom, Ordinary Seaman Florian-Rodriguez referred to Ordinary Seaman Proctor using derogatory terms, which included "cunt", "bitch", "puta" (whore in Spanish), "slut" and "whore". On occasion, Ordinary Seaman Proctor asked him to stop and Ordinary Seaman Florian-Rodriguez answered “Shut the fuck up”. These comments made Ordinary Seaman Proctor feel uncomfortable, degraded and harassed.

It adversely affected her learning experience on the course. [ 5 ] The evidence also includes an Agreed Statement of Facts, which goes as follows: AGREED STATEMENT OF FACTS 1. The Commanding officer of the Canadian Forces Naval Operations School (CFNOS) at the time of the incident indicated the following: a. The incidents led to additional administrative burden while the unit was already in a busy period.

This included processing of “the return to unit” of OS Florian-Rodriguez, Public Affairs notifications, follow on reporting to formation Commander, and response to queries which comes from a significant incident of this nature; and b. The news story associated with the charging of OS Florian-Rodriguez became national. This adversely impacted Canadian Forces Naval Operations School unit reputation, the reputation of the Naval Training System, and that of the Royal Canadian Navy. 2. Ordinary Seaman J.S. stated that the impacts this offence had on her were as follow: a. For the few days following the incident:

(1) She felt sick about herself;

(2) She wondered what had she done to deserve this;

(3) She was sad and had trouble sleeping; and

(4) Until the offender was “returned to unit” she felt uncomfortable knowing he was in close proximity, on the same course. This made her feel unsafe; b. For the rest of the course, she found that this event adversely affected her ability to study and focus on the training. c. For the few months that followed the incident, she had difficulties trusting other men. This resolved itself with the passage of time. 3. Ordinary Seaman Proctor stated that the impacts this offence had on her were as follow: a. While the comments were ongoing (until the offender was “returned to unit”):

(1) She felt embarrassed and humiliated in front of her peers on the course;

(2) It made her question herself and wondered what had she done to deserve this; and

(3) It made her wonder whether she would be subjected to this type of treatment throughout her career in the military. b. For the following year, she often wondered if the incident would be dealt with. Now that it has, she has no residual concerns. [ 6 ] Although the court is not bound by the joint recommendation made by counsel, it is generally accepted that a sentencing judge should depart from the joint submission only when it is contrary to the public interest, as stated by the Supreme Court of Canada in R. v.

Anthony-Cook , 2016 SCC 43 at paragraph 32 . [ 7 ] The only situation where the court would depart from the recommendation is “where the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system”, which includes courts martial, as mentioned in the decision of Anthony-Cook at paragraph 42 . [ 8 ] However, lawyers must provide to the court a full account of the offender’s situation and of the circumstances of the offences in the joint submission.

Here, the Court is satisfied with the information and the additional explanation provided by counsel. In fact, they provided sufficient and detailed information for the court to appreciate the joint submission arising from their discussions. In this case, the principles and objectives of general deterrence and denunciation were an integral part of counsel’s discussions and the basis of their joint submission. [ 9 ] Ordinary Seaman Florian-Rodriguez enrolled with the CAF in 2014 as a Reservist with Her Majesty’s Canadian Ship HUNTER. He was 17 years old at that time.

He went through some courses and in the spring of 2016, he was on a course as an 18-year-old and committed the offences for which he pleaded guilty. He left the CAF in 2017. Today, he is positively contributing to Canadian society by maintaining employment so far. He has been very cooperative with authorities and with his defence counsel. It is his first offence. [ 10 ] The respect for the physical and psychological integrity of peers is essential to the CAF.

That’s how the trust and the confidence necessary to accomplish any kind of mission in the CAF can be developed. [ 11 ] As suggested by defence counsel, this can be taken as a lesson learned for you, Ordinary Seaman Florian-Rodriguez. I think, for the remainder of your life, these events will stay on your mind. Respecting people, in order to get their trust, will be an important

part in

anything you do with other people in our society. [ 12 ] I looked at the information provided and I will accept the joint submission made by counsel to sentence you to a severe reprimand and a fine in the amount of $2,000, as it not contrary to the public interest and will not bring the administration of justice into disrepute. [ 13 ] I heard from the persons involved, through the Agreed Statement of Facts, and I understand that further to the closure of this court martial, it does not seem like there is any permanent damage done to their personal lives or any kind of mental issue or any other kinds of issue.

So I understand that this process has served not just to raise the issue involving the offender in this matter, but also help the complainants, and I am satisfied that it looks like they are happy with this ending.

FOR THESE REASONS, THE COURT : [ 14 ] FINDS Ordinary Seaman Florian-Rodriguez guilty of the second and fourth charges on the charge sheet and not guilty of the first and fifth charges on the charge sheet. [ 15 ] SENTENCES Ordinary Seaman Florian-Rodriguez to a severe reprimand and a fine in the amount of $2,000 payable in monthly installments of $100 starting on the 1st of May 2018 and payable for the 19 remaining months. Counsel : The Director of Military Prosecutions as represented by Major D.G.J. Martin Major P.L. Boutin, Defence Counsel Services, Counsel for Ordinary Seaman A.F. Florian-Rodriguez