R. v. Laferrière, 2016 CM 3016

COURT MARTIAL Citation: R. v. Laferrière , 2016 CM 3016 Date: 20161021 Docket: 201574 Standing Court Martial Canadian Forces Base Bagotville, Quebec Alouette, Québec, Canada Between: Her Majesty the Queen - and - Sergeant J.S.J.A. Laferrière, Accused Before : Lieutenant-Colonel L.-V. d’Auteuil, M.J. Restriction on publication: By court order made under

section 179 of the National Defence Act and

section 486.4 of the Criminal Code , information that could disclose the identity of the person described in this judgment as the complainant shall not be published in any document or broadcast or transmitted in any way. [OFFICIAL ENGLISH TRANSLATION] REASONS FOR FINDING (Orally) [ 1 ] Sergeant Laferrière was charged with an offence punishable under

section 130 of the National Defence Act for sexual assault, contrary to

section 271 of the Criminal Code ; ill-treated a person who by reason of rank was subordinate to him, contrary to

section 95 of the National Defence Act and drunkenness, contrary to

section 97 of the National Defence Act . [ 2 ] Essentially, the prosecution claims that the accused committed these offences during an evening out on 14 to 15 December 2014, while he was in the company of the complainant and another member at L’Aventurier, a bar located in the town of La Baie, in the province of Québec.

[ 3 ] The prosecution called two witnesses: the complainant and Second Lieutenant Ouellet. No documents were adduced into evidence to support the charges. [ 4 ] Sergeant Laferrière decided to testify in his own defence. He also made admissions concerning essential elements relating to identity and the date of the three offences. [ 5 ] At the time of the alleged incident, in support of the charges, Sergeant Laferrière and the complainant had known each other for approximately a year and a half.

The accused had been responsible for the complainant’s training when she arrived in the unit, and he subsequently served as her supervisor over the entire period. They maintained a strictly professional relationship. [ 6 ] During the evening of Sunday, 14 December 2014, the unit, which had very few members, held a wine and cheese tasting at the home of one of the members of the unit as the unit’s Christmas party.

Essentially, the cheese was provided and each member had to bring a bottle of wine. [ 7 ] Sergeant Laferrière and the complainant arrived separately at this event, which was attended by approximately ten to twenty people. Second Lieutenant Ouellet was also invited as a former member of the unit and he also arrived separately at the location of the event. He knew the accused and the complainant because he had previously worked with them within the same unit. [ 8 ] The accused drank one or two glasses of wine, a glass of rum and Sprite and two beers during the wine and cheese tasting.

The complainant also had a little alcohol. [ 9 ] During the course of the evening, Sergeant Laferrière spoke with various guests, including the complainant. He went outside to smoke a number of times, accompanied by the complainant. [ 10 ] Initially, the accused had intended to use the Operation Red Nose chauffeur service to return home after the party. However, Second Lieutenant Ouellet offered to drive him home because he was able to drive.

He extended the same offer to the complainant. [ 11 ] At the end of the evening, following the customary goodbyes, the accused got into Second Lieutenant Ouellet’s vehicle and sat in the front, on the passenger side. The complainant also got into the vehicle and sat in the back seat. They were both happy and festive, but were not really feeling the effects of the alcohol. [ 12 ] While en route to their respective homes, Sergeant Laferrière suggested the idea of going to a bar called L’Aventurier for a drink.

The complainant protested but Second Lieutenant Ouellet was open to the idea and since he was driving, he drove to that location in the town of La Baie. The complainant had no choice but to resign herself to going to the bar. [ 13 ] When they arrived at the bar, Sergeant Laferrière bought a drink for the complainant and Second Lieutenant Ouellet. There were only four or five people present, including someone who was celebrating his 20th birthday. The complainant danced with this individual because of this celebration. [ 14 ] The accused and the complainant carried on drinking.

For his part, Second Lieutenant Ouellet monitored his alcohol consumption because he intended to drive after leaving the bar. [ 15 ] The three of them danced and talked, moving back and forth between the bar and the dance floor. They also spoke with the other people who were there. [ 16 ] At one point during the evening, while she was sitting at the bar with Second Lieutenant Ouellet to her right and Sergeant Laferrière to her left, Sergeant Laferrière allegedly slid his hand down her back, to the top of her buttocks. She did not say anything. He

allegedly said that he could not help himself because she was too cute (“I cannot help it. You are just too cute.”) He allegedly started to do it again, this time touching her a little more in the area of her buttocks, but she pushed him away. She told him to stop. The accused again slid his hand down the complainant’s back, and Second Lieutenant Ouellet tapped him on the hand and told him that was not cool. [ 17 ] She went outside. Sergeant Laferrière joined her outside to smoke with her.

Second Lieutenant Ouellet also joined her, bringing her jacket and purse with him and told them that it was time to leave. [ 18 ] According to Second Lieutenant Ouellet, the complainant had first approached him during the evening to tell him that Sergeant Laferrière had touched her inappropriately.

He advised her to make him understand that she wanted him to stop. [ 19 ] He said that he saw the accused put one hand on the complainant’s stomach and the other hand on her back; he also indicated that he clearly heard the complainant tell Sergeant Laferrière to stop. [ 20 ] According to him, Sergeant Laferrière started to follow the complainant, trying to touch her so that he could grab her by the waist. The complainant had gone outside and then come back inside, changing locations all in a bid to avoid the accused.

Finally, Second Lieutenant Ouellet decided that it was time to leave in order to put a stop to this. [ 21 ] The accused and the complainant sat in the back, and during the drive to Sergeant Laferrière’s home, the latter allegedly tried to touch her again but she avoided his hands. According to Second Lieutenant Ouellet, Sergeant Laferrière was simply elbowing the complainant to tease her.

Second Lieutenant Ouellet took the accused home first, and then the complainant. [ 22 ] Both Sergeant Laferrière and the complainant testified that they would not have driven after leaving the bar because they were feeling the effects of the alcohol they had drunk that evening. [ 23 ] The accused testified in his own defence and asserted that he only touched the complainant twice: upon arrival at the bar, he had touched her back while talking to her in order to get her attention, because he wanted to know what she wanted to drink, and a second time during the evening when he had pushed passed her in order to go somewhere else. [ 24 ] He told the Court that he did not have any recollection of her telling him to stop touching her, that if she had said anything, he had not understood her, either because he had difficulty understanding English or because the music was loud.

He categorically denied saying that he could not stop himself from touching her because she was too cute. [ 25 ] He claimed that if he had touched her buttocks, he had either done so inadvertently or she had been touched by someone else. [ 26 ] Two days after the incident, Second Lieutenant Ouellet went to inform Warrant Officer Powers, the supervisor of the accused and the complainant, to help him manage any work-related problems between the two resulting from the alleged incident. [ 27 ] Warrant Officer Powers confronted the complainant and the latter told him her version of the facts relating to the incident.

That same day, the complainant went to the military police to file a complaint and give her version of the facts. An investigation ensued.

The accused was charged on 12 November 2015 and the trial, which was supposed to start on 13 June 2016, started on 17 October 2016 at the request of the parties. [ 28 ] Before the Court provides its legal analysis, it is appropriate to deal with the issue of the presumption of innocence; the burden and the standard of proof beyond a reasonable doubt, a standard that is inextricably intertwined with the principle fundamental to all criminal trials, the credibility and reliability of testimony, the concept of proof and the essential elements of each of the charges that Sergeant Laferrière is facing.

These principles, of course, are well known to counsel, but other people in this courtroom may well be less familiar with them. [ 29 ] The presumption of innocence is the first and most important principle of law applicable to all cases dealt with under the Code

of Service Discipline and the Criminal Code . At the opening of his trial , Sergeant Laferrière was presumed innocent and this presumption only ceases to apply if the prosecution presents evidence that satisfies the Court of his guilt beyond a reasonable doubt. [ 30 ] Two rules flow from the presumption of innocence. One is that the prosecution bears the burden of proving guilt. The other is that guilt must be proven beyond a reasonable doubt.

These rules are linked with the presumption of innocence and ensure that no innocent person is convicted. [ 31 ] The burden of proof rests with the prosecution and never shifts. Sergeant Laferrière does not have to prove that he is innocent. He does not have to prove anything . [ 32 ] What does the expression “beyond a reasonable doubt” mean? Reasonable doubt is not an imaginary or frivolous doubt. It is not based on sympathy or prejudice against anyone involved in the proceedings. Rather, it is based on reason and common sense.

It is a doubt that arises logically from the evidence or from a lack of evidence. [ 33 ] It is virtually impossible to prove anything with absolute certainty, and the prosecution is not required to do so. Such a standard would be impossibly high. However, the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt. The Court must not find Sergeant Laferrière guilty unless it is sure he is guilty. Even if the Court believes that Sergeant Laferrière is probably guilty or likely guilty, that is not sufficient.

In those circumstances, the Court must give the benefit of the doubt to Sergeant Laferrière and find him not guilty because the prosecution has failed to satisfy the Court of his guilt beyond a reasonable doubt. [ 34 ] The important point for the Court is that the requirement of proof beyond a reasonable doubt applies to each of the essential elements of an offence. It does not apply to individual elements of evidence.

The Court must decide, looking at the evidence as a whole, whether the prosecution has proved Sergeant Laferrière guilt beyond a reasonable doubt. [ 35 ] Reasonable doubt applies to the issue of credibility. Regarding any issue, the Court may believe a witness, not believe that witness or be unable to decide. The Court does not have to fully believe or not believe a witness or group of witnesses.

If it has a reasonable doubt as to the guilt of Sergeant Laferrière because of the credibility of witnesses, the Court must find him not guilty. [ 36 ] If the evidence, the absence of evidence, the reliability or the credibility of one or more witnesses leaves the Court with a reasonable doubt as to Sergeant Laferrière’s guilt in respect of a charge, the Court must find him not guilty of that charge. [ 37 ] The Court has heard Sergeant Laferrière testify.

When a person charged with an offence testifies, the Court must assess that evidence as it would assess the testimony of any other witness, keeping in mind the instructions mentioned earlier about the credibility of witnesses.

The Court may accept Sergeant Laferrière’s testimony in whole or in part, or not accept it at all. [ 38 ] Clearly, if the Court believes Sergeant Laferrière’s testimony that he did not commit the alleged offences, it must find him not guilty. [ 39 ] However, even if the Court does not believe Sergeant Laferrière’s testimony, but his testimony raises reasonable doubt about an essential element of the offence, it must find him not guilty of that offence. [ 40 ] Even if Sergeant Laferrière’s testimony does not raise a reasonable doubt about an essential element of the alleged offence, if, after considering all the evidence, the Court is not satisfied beyond a reasonable doubt of his guilt, it must acquit him. [ 41 ] The Court must consider only the evidence presented in the courtroom.

That consists of testimonies and exhibits adduced. It may also include admissions, as in this case, because counsel for both parties agreed on certain facts. [ 42 ] The evidence includes what each witness says in response to questions asked. The questions, however, are not evidence,

unless the witness agrees that what is asked is correct. Only the answers are evidence. [43] Now, what can be said about the different essential elements for each of the charges to be proven by the prosecution? [44] Sergeant Laferrière is charged with sexual assault.

Section 271 of the Criminal Code reads as follows: 271 Everyone who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term of not more than 10 years [45] In R v. Chase, (SCC), [1987] 2 SCR 293, at page 302, Justice McIntyre provided the following definition ofsexual assault: Sexual assault is an assault within any one of the

definitions of that concept in s. 244(1) of the Criminal Code which is committed incircumstances of a sexual nature, such that the sexual integrity of the victim is violated. [46] Subsection 265(1) of the Criminal Code reads, in part, as follows: 265

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly [47] R. v. Ewanchuk, (SCC), [1999] 1 SCR 330, at paragraph 23, established the following: A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the actus reusand that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching. [. . .] [. . .] is established by the proof of three elements: (

i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. [48] Consent involves the complainant’s state of mind. Was it with the voluntary agreement of the complainant that the accuseddid what he did in the way in which he did it and at the time he did it? In other words, did the complainant want the accused to do whathe did? Voluntary agreement is an agreement given by a person who is free to agree or disagree, of his or her own free will. [49] Just because the complainant did not resist or put up a fight does not mean that she consented to what the accused did.

Consentrequires knowledge on the complainant’s part of what is going to happen and a decision by her, without the influence of force, threats,fear, fraud or abuse of authority, to let it occur. [50] The mens rea is the intention to touch a person, knowing of, or being reckless of or wilfully blind to, a lack of consent, eitherby words or actions, from the person being touched. [51] The prosecution had to prove the following essential elements beyond a reasonable doubt: the identity of the accused as theauthor of the offence, and the date and the place as alleged in the charge sheet.

[ 52 ] The prosecution also had to prove the following additional elements: (

a) that Sergeant Laferrière used force directly or indirectly against the complainant; (

b) that Sergeant Laferrière intentionally used force against the complainant; (

c) that the complainant did not consent to the use of force; (

d) that Sergeant Laferrière knew of, or was reckless of or wilfully blind to, a lack of consent on the part of the complainant; and (

e) that Sergeant Laferrière’s contact with the complainant was of a sexual nature. [ 53 ] Sergeant Laferrière is also charged of ill-treated a person who by reason of rank was subordinate to him.

Section 95 of the National Defence Act reads as follows: 95 Every person who strikes or otherwise ill-treats any person who by reason of rank or appointment is subordinate to him is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment. [ 54 ] For the Court to find Sergeant Laferrière guilty of the offence of ill-treated the complainant who by reason of rank was subordinate to him, the prosecution must prove the following essential elements beyond a reasonable doubt: (

a) the identity of Sergeant Laferrière as the author of the alleged offence; (

b) the date of the offence; (

c) the place of the offence; (

d) the fact that Sergeant Laferrière ill-treated the complainant; (

e) the fact that the complainant was by reason of rank subordinate to Sergeant Laferrière; and (

f) the blameworthy state of mind of Sergeant Laferrière. [ 55 ] Every Canadian Forces member must respect the dignity of all persons, including those who by reason of rank are subordinate. The essence of this offence is to avoid situations of abuse of authority within the organization, which could undermine the trust, confidence and morale that must exist among soldiers so that they can carry out their mission. [ 56 ] As I stated in my decision in R. v.

Murphy , 2014 CM 3021 , regarding blameworthy state of mind, the prosecution must prove beyond a reasonable doubt the intent of Sergeant Laferrière to abuse his authority or to use violence toward a subordinate because of the existence of such a hierarchical relationship. [ 57 ] Finally, regarding the charge of drunkenness against Sergeant Laferrière,

section 97 reads as follows:

(1) Drunkenness is an offence and every person convicted thereof is liable to imprisonment for less than two years or to less punishment, except that, where the offence is committed by a non-commissioned member who is not on active service or on duty or who has not been warned for duty, no punishment of imprisonment, and no punishment of detention for a term in excess of ninety days, shall be imposed.

(2) For the purposes of subsection (1), the offence of drunkenness is committed where a person, owing to the influence of alcohol or a drug, (

a) is unfit to be entrusted with any duty that the person is or may be required to perform; or (

b) behaves in a disorderly manner or in a manner likely to bring discredit on Her Majesty’s service. [ 58 ] The essential elements of this offence are the following: (

a) the identity of Sergeant Laferrière as the author of the alleged offence; (

b) the date of the offence; (

c) the place of the offence; (

d) the fact that Sergeant Laferrière was under the influence of alcohol or a drug; and (

e) the fact that Sergeant Laferrière was unfit to be entrusted with any duty that the person is or may be required to perform or behaved in a disorderly manner or in a manner likely to bring discredit on Her Majesty’s service. [ 59 ] The central issue in this case is whether or not Sergeant Laferrière committed the acts alleged by the prosecution and which have given rise to the charges. It is not the accused’s role to establish that the events did not take place. Nor is it the Court’s role to compare the various versions and to choose one.

The Court must determine whether, in the light of all the evidence, it is satisfied, beyond a reasonable doubt, that the events underlying the alleged offences, actually took place. [ 60 ] Sergeant Laferrière testified in his defence. He testified in a calm manner.

His version of the facts essentially corroborates that of the complainant and of the Second Lieutenant in terms of how the evening unfolded: the wine and cheese tasting, the move to the bar, the sequence of events in the bar, the departure from the bar and the return home. [ 61 ] The events he described to the Court differ on a single, major issue, that of his touching and grabbing the complainant during the evening at the bar despite her telling him to stop doing so. [ 62 ] Basically, Sergeant Laferrière categorically denies telling the complainant that he could not stop himself from touching her because she was just too cute. [ 63 ] However, regarding the fact that she told him to stop touching her, he stated that he had no recollection of her saying this and that if she had done so, he might not have understood what she was saying because of his limited understanding of English or because the music was too loud.

[ 64 ] It therefore appears to the Court that the accused is open to the fact that the complainant might have said or done such a thing. In fact, the music does not seem to have been a problem through the entire evening they spent at the bar, since, according to his testimony, he was able to have various conversations in a place where there were very few people.

The Court does not understand why, in these circumstances, it would suddenly have been difficult for him to understand what the complainant was saying to him and what an independent witness, Second Lieutenant Ouellet, was able to hear quite distinctly. [ 65 ] Regarding his comprehension of English, the Court understands that Sergeant Laferrière had been working with the complainant for over a year in both official languages and that his understanding of English seemed excellent, given the fact that, a few months later, a language profile test noted this fact and that he did not request an interpreter before the Court when the complainant testified in English.

In fact, this reason does not seem very plausible. [ 66 ] The Court takes from the accused’s testimony that he limited himself to denying having said certain things and committed certain acts, while minimizing the possibility for certain reasons, that he heard the complainant’s warning. [ 67 ] The evidence presented by the prosecution that the accused touched and grabbed the complainant carries weight in the circumstances and the accused’s denial of the actions and words underlying the offences he is accused of are not convincing.

His statements raise a doubt about his willingness to tell the truth as he truly sees it and about the accuracy of his account of the events. [ 68 ] Consequently, regarding the incident leading to the charges before this Court, the Court does not find Sergeant Laferrière’s testimony to be credible or reliable. [ 69 ] Even though the Court does not accept the accused’s testimony, it appears that it does not raise a reasonable doubt about the incident in question having taken place as the prosecution presents it. [ 70 ] Finally, the complainant’s testimony seems to be credible and reliable.

She testified in a calm and consistent manner. She did not hesitate correcting her answers when she was confronted about certain aspects of her testimony. She recognized, for example, that it was difficult for her to testify about the accused’s state of drunkenness based on his drinking alone given that she did not keep an exact count of how much he drank that evening. [ 71 ] As for Second Lieutenant Ouellet, he was the person who had most controlled his drinking on the evening of the incident, and he has an excellent recollection of the events.

He did not take sides, and was more concerned about his colleagues’ well-being than anything else in the circumstances.

His testimony was precise, credible and reliable. [ 72 ] Consequently, the Court concludes that the testimonies of the complainant and Second Lieutenant Ouellet are entirely credible and reliable. [ 73 ] Now, turning to the sexual assault charge, the Court is satisfied beyond a reasonable doubt that the prosecution has established that Sergeant Laferrière used force against the complainant and that he did so intentionally and without her consent, and that he was aware of the absence of consent on the part of the complainant. [ 74 ] The Court is also satisfied that the prosecution has met its burden of proof regarding the identity, the date and the place of this offence.

As for the accused’s defence of honest but mistaken belief in the complainant’s alleged consent to be touched, it is the Court’s view that there is no evidence to lend an air of reality to this defence, and the Court will not allow it. [ 75 ] However, the Court is far from satisfied beyond a reasonable doubt of the sexual and carnal nature of the touching in question. In fact, apart from evidence establishing that the complainant was briefly touched on her buttocks, no other evidence was introduced to establish such a thing.

Several elements, such as the exact nature of the touch, the hand with which the complainant was touched, the manner in which she was touched, the clothes she was wearing and the time it lasted, were not established. In fact, the Court has very little evidence to reach such a conclusion. [ 76 ] As a result, in view of all the evidence, the Court finds that the prosecution did not demonstrate beyond a reasonable doubt the

essential element of the sexual nature of the contact. [ 77 ] However, all the other essential elements of the offence were proved by the prosecution beyond a reasonable doubt, and, consequently, the Court finds the accused guilty of the lesser and included offence of assault. [ 78 ] Regarding the offence of ill-treating a subordinate, the Court is satisfied that the prosecution proved the following elements beyond a reasonable doubt: the identity, the date, the place and the hierarchical relationship. [ 79 ] The incident at the bar followed a party bringing together the members of a unit.

It was in this official context that the accused and the complainant met, and when they decided to prolong the evening with Second Lieutenant Ouellet at the L’Aventurier bar, the context was the same. When he touched the complainant, Sergeant Laferrière was the complainant’s colleague but also her superior and he therefore violated her physical and psychological integrity without her consent. [ 80 ] To some extent, he victimized and bullied a subordinate, who pointed out the hierarchical relationship to him when she told him to stop doing what he was doing.

He continued regardless despite the presence of another member who was also aware of the relationship. [ 81 ] The Court finds that the prosecution has also demonstrated beyond a reasonable doubt that Sergeant Laferrière ill-treated the complainant and his intention to act as he did towards the complainant. [ 82 ] As a result, in view of all the evidence, the Court finds that the prosecution demonstrated beyond a reasonable doubt all the essential elements of that charge and thus finds the accused guilty of ill-treated a person who by reason of rank was subordinate to him. [ 83 ] Lastly, regarding the charge of drunkenness, the Court is satisfied that the prosecution has demonstrated beyond a reasonable doubt the following essential elements: the identity, the date and the place of offence and the fact that Sergeant Laferrière was under the influence of alcohol. [ 84 ] The Court finds that prosecution has also discharged its burden regarding the essential element of the accused’s disorderly conduct.

The accused’s conduct, as described by the complainant and Second Lieutenant Ouellet, is blameworthy as the accused violated the physical and psychological integrity of a subordinate and colleague despite her trying to make him understand that she wanted him to stop. She did not want to be touched or grabbed by the waist by the accused in a bar, but he did it anyway. [ 85 ] As a result, in view of all the evidence, the Court finds that the prosecution demonstrated beyond a reasonable doubt all the essential elements of that charge and thus finds the accused guilty of drunkenness.

FOR THESE REASONS, THE COURT: [ 86 ] FINDS Sergeant Laferrière not guilty of sexual assault but guilty of the lesser and included offence of assault, contrary to

section 266 of the Criminal Code ; and [ 87 ] FINDS Sergeant Laferrière guilty of the second charge, namely, ill-treating a person who by reason of rank was subordinate to him, contrary to

section 95 of the National Defence Act ; and guilty of the third charge, namely, drunkenness, contrary to

section 97 of the National Defence Act . Counsel:

The Director of Military Prosecutions, as represented by Major A.J. Van der Linde and Captain M.D. Ferron Major P.-L. Boutin, Directorate of Defence Counsel Services, counsel for Sergeant J.S.J.A. Laferrière