R v Reade, 2011 CM 4007

COURT MARTIAL Citation: R v Reade , 2011 CM 4007 Date: 20110307 Docket: 201011 Standing Court Martial Canadian Forces Base Borden Borden , Ontario, Canada Between: Her Majesty the Queen - and – Private D.E. Reade, Offender Before: Lieutenant-Colonel J-G Perron, 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Code , information that could disclose the identity of the person described in this judgment as the complainant shall not be published in any document or broadcast or transmitted in any way. REASONS FOR SENTENCE (Orally) [ 1 ] Private Reade, having accepted and recorded your plea of guilty to charge No. 2, the court now finds you guilty of that charge. You have pled guilty to sexually harassing another soldier which is a conduct to the prejudice of good order and discipline. Charge No. 1 was withdrawn by the prosecutor with leave of the court.

The court must now determine a just and appropriate sentence in this case. [ 2 ] The statement of circumstances to which you formally admitted the facts as conclusive evidence of your guilt, provide this court with the circumstances surrounding the commission of this offence. Your counsel has presented two exhibits during the sentencing phase of this trial. [ 3 ] At around 0100 hours, Saturday, 22 May 2010, a 22-year-old female private was in the laundry cleaning room of building M-5 at

CFB Gagetown waiting for her laundry to finish drying. You had just returned to the M-5 barracks from an evening where you had consumed alcoholic beverages. You entered the laundry cleaning room wearing only a T-shirt and underwear, and approached the female private from behind and pressed yourself against her. You kissed her neck and then placed your hand under her shirt and bra grabbing her breast. You asked her if she wanted you to which she replied no. You left the laundry cleaning room, but came back minutes later. You again grabbed under her shirt and bra, her breast, and grabbed her buttocks.

She again told you that she did not want to have sex with you. You then both returned to your respective rooms. [ 4 ] The female private never consented to her breast and buttocks being touched by you. You were interviewed by the Canadian Forces National Investigation Service (CFNIS) and you admitted responsibility for your actions and expressed your remorse. The CFNIS determined that alcohol was a factor in this incident.

On 23 May 2010 you apologized to the female private. [ 5 ] The prosecution and your defence counsel have jointly proposed a sentence of a severe reprimand and a fine in the amount of $1,500 to be paid in 12 monthly instalments of $125 per month. [ 6 ] The Court Martial Appeal Court clearly stated that the fundamental purposes and goals of sentencing, as found in the Criminal Code of Canada [1] , apply in the context of the military justice system and a military judge must consider these purposes and goals when determining a sentence [2] .

The fundamental purpose of sentencing is to contribute to respect for the law and the protection of society, and this includes the Canadian Forces, by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community.

The court must determine if protection of the public would best be served by deterrence, rehabilitation, denunciation, or a combination of those factors. [ 7 ] As indicated by the Court Martial Appeal Court, sentencing is a fundamentally subjective and individualized process where the trial judge has the advantage of having seen and heard all of the witnesses, when witnesses are heard, and it is one of the most difficult tasks confronting a trial judge [3] . [ 8 ] The sentencing provisions of the Criminal Code , ss 718 to 718.2, also provide for an individualized sentencing process in which the court must take into account not only the circumstances of the offence, but also the specific circumstances of the offender [4] .

A sentence must also be similar to other sentences imposed in similar circumstances [5] . The principle of proportionality is at the heart of any sentencing [6] . The Supreme Court of Canada tells us, at paragraph 42 of Nasogaluak [7] , that proportionality means a sentence must not exceed what is just and appropriate in light of the moral blameworthiness of the offender and the gravity of the offence. [ 9 ] The court must also impose a sentence that should be the minimum necessary sentence to maintain discipline.

The ultimate aim of sentencing is the restoration of discipline in the offender and in military society. Discipline is that quality that every CF member must have which allows him or her to put the interests of Canada and the interests of the Canadian Forces before personal interests. This is necessary because Canadian Forces members must willingly and promptly obey lawful orders that may have devastating personal consequences such as injury and death.

Discipline is described as a quality because, ultimately, although it is something which is developed and encouraged by the Canadian Forces through instruction, training, and practice, it is an internal quality and it is one of the fundamental prerequisites to operational efficiency in any armed force. [ 10 ] I will now set out the aggravating circumstances and the mitigating circumstances that I have considered in determining the appropriate sentence in this case. I consider the following to be aggravating:

(

a) This is an incident of unwanted sexual touching of the breasts and buttocks under the complainant's clothes in a co-ed barracks on a military establishment. Residents of barracks, women and men, must feel safe and secure in these premises. Your actions violated the physical integrity of the complainant in a place where she is supposed to feel safe. (

b) You touched her once, were rebuffed by her, left the room, and then came back to commit the same acts again. You violated her physical and sexual integrity a second time knowing full-well that she did not consent to your actions. (

c) You were 34 years old at the time of the offence; you were old enough to know better and to understand the nature and consequences of your actions. [ 11 ] As to the mitigating circumstances I note the following: (

a) You do not have a conduct sheet. You are a first-time offender. You had been a member of the Canadian Forces for less than a year at the time of the offence. While I will consider your lack of experience in the Canadian Forces as a mitigating factor, I do not consider you a youthful offender. (

b) You have fully cooperated with the CFNIS investigation and you have pled guilty; therefore, such cooperation with the police and a plea of guilty will usually be considered as mitigating factors. This approach is generally not seen as a contradiction of the right to silence and of the right to have the Crown prove beyond a reasonable doubt the charges laid against the accused, but is seen as a means for the courts to impose a more lenient sentence because the plea of guilty usually means that witnesses do not have to testify and it greatly reduces the costs associated with a judicial proceeding.

It is also usually interpreted to mean that the accused wants to take responsibility for his or her unlawful actions and the harm done as a consequence of those actions. (

c) These incidents occurred over a short period of time. You have also apologized to the complainant on the following day; therefore, the court accepts that you do regret your actions and that you take full responsibility for this offence. (

d) Exhibit 6, the letter of recommendation from Warrant Officer Comeau, describes you in a positive manner, and he is of the opinion that you can become a productive soldier. (

e) Alcohol was involved in this incident, and it would appear that you might also have been living some difficult times in your previous relationship. These factors do not explain or render your actions understandable. They may assist in concluding that these actions are out of character for you. I will not venture to say so since I do not know you and have no evidence before me to assist me in making such a conclusion. [ 12 ] Private Reade, stand up. You have taken full responsibility for your actions. It appears to me that you fully realize that you made some foolish decisions in 2010.

Considering the nature of the offence, the sentence must reflect primarily the principle of general and specific deterrence, but considering the nature of the offender, the sentence must also consider rehabilitation. [ 13 ] The Court Martial Appeal Court has stated clearly that a sentencing judge should not depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute or unless the sentence is otherwise not in the public interest. [ 14 ] I trust that these disciplinary proceedings will impress upon you, and anyone who will become familiar with them, that your conduct on 22 May 2010 is a serious breach of the Code of Service Discipline because it attacks the physical and sexual integrity of a fellow soldier.

The present sentence is reflective of the nature of the offence, but also of your cooperation with the military police, your guilty plea, and your display of remorse. [ 15 ] After reviewing the totality of the evidence, the jurisprudence, and the representations made by the prosecutor and your defence counsel, I have come to the conclusion that the proposed sentence will not bring the administration of justice into disrepute and that the proposed sentence is in the public interest. Therefore, I agree with the joint submission of the prosecutor and of your defence counsel.

FOR THESE REASONS, THE COURT: [ 16 ] SENTENCES you to a severe reprimand and a fine in the amount of $1,500. The fine shall be paid in 12 monthly instalments of $125 commencing on the 30th day of March, 2011. Counsel: Captain R.D. Kerr, Canadian Military Prosecution Services Counsel for Her Majesty the Queen Major J.A.E. Charland, Directorate of Defence Counsel Services Counsel for Private D.E. Reade