R. v. Wellowszky, 2016 CM 1011

COURT MARTIAL Citation: R. v. Wellowszky, 2016 CM 1011 Date: 20160624 Docket: 201609 Standing Court Martial Captain Bellenden Hutcheson VC Armoury Toronto, Ontario, Canada Between: Her Majesty the Queen - and - Warrant Officer R.A. Wellowszky, Offender Before: Colonel M. Dutil, C.M.J. REASONS FOR SENTENCE (Orally) [ 1 ] Warrant Officer Wellowszky admitted his guilt on 21 June 2016 to one count of behaving in a disgraceful manner under

section 93 of the National Defence Act ( NDA ) and one count of conduct to the prejudice of good order and discipline under

section 129 of the National Defence Act . The charges read as follows: SECOND CHARGE BEHAVED IN A DISGRACEFUL MANNER

Section 93 ( NDA ) Particulars : In that he, on or about 16 March 2014, in the Royal Regiment of Canada female washroom at Fort York Armoury, Toronto, Ontario, while drunk and in uniform, did commit an assault on Sergeant K.N.L. THIRD CHARGE CONDUCT TO THE PREJUDICE OF GOOD

Section 129 ( NDA ) ORDER AND DISCIPLINE Particulars : In that he, on or about 15 and 16 March 2014, did harass Sergeant K.N.L. contrary to the DAOD 5012-0, Harassment prevention and resolution.

[ 2 ] The facts surrounding the commission of the offences are captured in the Statement of Circumstances filed with the court at Exhibit 4 and is reproduced here in its entirety. STATEMENT OF CIRCUMSTANCES 1. At all times material to this case, Warrant Officer (WO) Wellowszky was a member of The Royal Regiment of Canada in the Reserve Force of the Canadian Armed Forces. 2. On 15 March 2014, The Royal Regiment of Canada held a Sergeants (Sgt) and Warrant Officers’s mess dinner at Fort York Armoury in Toronto, Ontario. 3.

WO Wellowszky and Sgt K.N.L. were in attendance wearing uniforms, although they did not talk to each other during the dinner. 4. After the dinner, the guests gathered in the Sgt and WO’s mess. At around 2315hrs, Sgt K.N.L. first saw WO Wellowszky. He appeared intoxicated to the point of being sloppy and almost falling down. 5. At some point in the evening, WO Wellowszky approached Sgt K.N.L. and asked to have a picture taken with her and asked her to show her legs. Sgt K.N.L. laughed off his comment and declined to show her legs but agreed to take the picture. A selfie picture of the two was also taken. 6.

Sgt K.N.L. was in the mess, sitting on a two-seat couch with another Sgt. WO Wellowszky asked if he could sit on the couch beside her. She moved over to allow him to sit. While she was engaged in conversation with others, WO Wellowszky slipped his hand underneath her buttocks. She stood up to avoid his touch, moved a few feet away and joined another conversation. 7. WO Wellowszky stood up to follow her, then slapped her buttocks. Sgt K.N.L. glared at him and told him that his actions were inappropriate. He apologized and she moved away from him. 8.

A few minutes later, while she was sitting on the couch in the mess, WO Wellowszky came over and took a picture of her while her legs were somewhat exposed because of the slit in her mess kit skirt. This made her feel uncomfortable. 9. Later in the evening, while Sgt K.N.L. was again seated on the couch, he called her from across the room, repeatedly asking what she wanted to drink. She had stopped drinking alcohol a few hours earlier because she was driving. WO Wellowszky was insistent on buying something alcoholic for her.

Sgt K.N.L. made eye contact with the bartender to indicate that she only wanted to water. 10. At around 0130hrs on 16 of March 2014, Sgt K.N.L. was ready to leave and began to make her rounds in the mess to say her goodbyes. She said goodbye to a group that included WO Wellowszky. He began to follow her, to ask her where she was going and if she wanted to find someplace quiet to go. She said no and told him that she was going to get her coat and then go home.

She felt nervous to go get her coat and be alone with him so she told him that she was going to the female washroom and that he should go back to the mess. 11. He followed her to the washroom and said he would wait outside until she was done. She tried to send him back to the mess a few times but he refused to go. She became nervous so, once in a stall, she texted her friend, Sgt Probst to ask him to come to the outside of the washroom where she believed WO Wellowszky to be, to bring him back to the mess. 12. Shortly after, WO Wellowszky came into the female washroom to ask her if she was done.

She was still in the stall at that point. She yelled at him several times to get out. She thought that he had left because she heard the washroom door open and close.

13. Sgt K.N.L. came out of the stall and was startled to see WO Wellowszky still in the washroom. He had been standing in an area of the washroom away from her line of sight while in the stall. 14. WO Wellowszky approached her and tried to take her in his arms. She pushed him out of the way but he put his arms around her, held her tight and did not let her go. He kissed her face and neck. She said “no” and “stop” several times but he kept moving her backwards towards the stall.

When she had her back to door of the stall, she was able to use her arms to hold on to the side of the door frame and yelled at him to stop. 15. He finally released her and she ran out of the washroom and up to the band room where her coat was. 16. When she got there, she called Sgt Probst on his phone. He answered and she told him to read his text messages. Shortly thereafter, he met her in the band room. She explained to him what had happened. 17. While they were discussing what had happened, WO Wellowszky arrived at the door of the band room.

He accused her of lying about leaving and asked her to stay to have another drink. While saying that, he pinched her firmly on the buttocks. She jumped, grabbed her coat and left for the night. [ 3 ] At the sentencing hearing, Sergeant K.N.L. read a Victim Impact Statement that she had prepared for the hearing and it can be found at Exhibit 6.

The Court finds that it is important, as well, to reproduce this statement to highlight how this type of behaviour and conduct had a genuine prejudicial effect on the victim, both personally and professionally, but also on the Canadian Armed Forces, because she now feels unable to fulfil her duties and responsibilities in the Canadian Armed Forces as a result of these events. “VICTIM IMPACT STATEMENT In the first few weeks at work after March 15/16, 2014 I felt my whole world had been turned upside down.

Fort York Armoury (FYA) – a place where, prior to that night, I would start smiling as soon as I walked in the door – became a place of fear and dread. Initially, I was removed from the CSMs meetings so I would not be in close quarters with WO Wellowszky, and I was required to have an escort whenever I was conducting business in the Company (Coy) lines. At first this seemed like a reasonable course of action, especially that first Thursday night when at one point I had to walk past WO Wellowszky in the narrow corridor at the edge of the parade square.

I didn’t know if he would lash out at me – physically or verbally – so I was glad I was not alone. But as time went on it became more and more inconvenient (members (mbrs) of the band would have to miss part of the rehearsal in order for me to do my job) and the night two of my members almost didn’t get promoted because of a miscommunication, I lost it. (Well, not actually, but I was furious.) I requested that WO Wellowszky and I attend the CSMs meetings on an alternating basis so that we would not be there together, but that we could both get the required information to do our jobs.

That request was initially denied, but was eventually implemented in time for the next training year to start (Sept 2015). I felt that finally I could do my job again. That feeling was short-lived as I realized I no longer felt comfortable in my own Sgt’s and WO’s Mess. I tried to go, on and off, on Thursdays after training that fall, but I soon realized I couldn’t be in the same room as WO Wellowszky and be relaxed.

Eventually, I stopped going all together (unless specifically ordered to do so by the RSM) so not only have I lost the several hundred dollars I still had to pay in mess dues, but I quit the mess committee (which was something I quite enjoyed) and I lost all the networking opportunities that happen in a mess, making my job that much harder. As March 2015 approached I knew I would have to make a decision with regards to the next Sgt’s and WO’s Mess Dinner.

Eventually I decided that I had as much right to be there as WO Wellowszky did, so I would go, but that I would probably need female support to get me through the night. I asked a friend from another unit to join me, who was already somewhat aware of what had happened, and I went. I didn’t know until I got there that WO Wellowszky wouldn’t be there, but I still had a terrible time. I couldn’t help but relive the events of the previous year, so that was a shadow on my mind the entire evening. Basically I arrived, ate dinner, stayed until the speeches were done, and then left. I cried most of the way home.

The summer of 2015 the Deschamps Report was released, so all of a sudden there was a lot more focus on harassment and assault in the Military, which I found a bit ironic given that I was in the middle of the process but hadn’t heard much about a trial. General Whitecross was touring the country giving presentations to military mbrs about harassment and how it was no longer going to be tolerated in any form, and because I was employed at CFB Borden at the time, I was forced to go to her presentation. It was a difficult 3 hours to sit

through, but by that time I had found out that my court date for the General Court Martial (GCM) had been set for 30 November 2015,and while that seemed like a long time to wait, I was happy that at least the end was in sight. Back at the unit, in September 2015 WO Wellowszky was moved to a different department, so we no longer had to split the CSMsmeetings, but by then my relationships with the Ops WO, the BOR/FIN Sgt, the Adjt, and the other CSMs was awkward and strained,making my job that much more difficult again.

Then in October I got a phone call from Maj Samson telling me the GCM had beenrescheduled to June 2016 and I was very upset. I couldn’t believe that this process was going to be dragged out for another 6 months! Itwas already hard enough at the unit for me, and the fact that every Thursday night, whenever I had to go down to the Coy line to do myjob, I might randomly run into WO Wellowszky, was incredibly stressful. I guess I could have thrown in the towel at that point but Irefused to give up.

I have to say though, when the opportunity came up for a 2½ month Class B contract at CFB Borden in the winter of 2016 – working inthe Music Division (Div) with all the same people I worked for the previous summer – I jumped at the chance, even though it wasdifficult to manage my CSM duties at the unit while working away on tasking. That contract got me out of FYA and into an environmentwhere I felt welcomed, appreciated and comfortable working, which is the opposite of what I have felt at the Royals these past 2+ years.

Finally, as I am again working at CFB Borden this summer in the role of Course Director for Music Div, there was an incident a fewweeks ago that has made me realize I am no longer an effective WO in the CAF. Because of what happened to me in March 2014, and allthe fallout afterwards, I cannot effectively lead or manage troops. If the opportunity arises for me to make a lateral move into a positionwhere I will not be in charge of people directly, then – with the permission of my Chain of Command – I will take it, but otherwise I willbe releasing from the military.

This is the impact the events of March 15/16 2014 have had on me.” [4] In her short testimony, she clarified the last paragraph of her written statement and stated that the incident in question was relatedto her inability as the Couse Director to manage a sexual harassment complaint involving two of her students because of her ownexperience as a recent victim of serious harassment.

This affirmation speaks highly of the prejudice caused to her, but also to theCanadian Armed Forces. [5] In addition to the testimony of the victim, the evidence before the Court consists of the following: judicial notice under section15(2) of the Military Rules of Evidence, including judicial notice under section 15(2) of the content of

Chapter 204 of the Compensationand Benefits Instructions; judicial notice under section 15(2) of the content of the Chief of the Defence Staff (CDS) Operations (Op)Order, CDS OP ORDER - OP HONOUR, dated 14 August 2015, Exhibit 5; the Member’s Personnel Record Resumé and the PersonnelEvaluation Reports from 1999 to 2013 for Warrant Officer Wellowszky, Exhibit 7; the offender’s Master Pay Record Report fromDecember 2014 to June 2016, Exhibit 8; a document signed by the commanding officer of The Royal Regiment of Canada concerninghis opinion of Warrant Officer Wellowszky as well as how he will approach the outcome of these proceedings, Exhibit 9; and adocument from the offender’s wife that provides her perspective with regard to the impact that these events have had on her family andtheir marital relationship, Exhibit 10. [6] In R. v.

Morgan, 2015 CM 4005, 8 April 2015, the offender pleaded guilty and was found guilty of three charges under section129 of the National Defence Act for conduct to the prejudice of good order and discipline in the form of sexual harassment of threefemale service members of a lower rank.

Unlike the case at bar, the physical contacts involved “were fleeting in nature and non-intrusive”; however, I fully agree with the remarks of my colleague, Pelletier M.J., at paragraphs 16 to 18 on the corrosive effect ofsexual harassment in a workplace or environment: [16] Counsel submitted that the facts of this case are not the most egregious instances of sexual harassment that one canconsider. It was also submitted that physical contacts which occurred were fleeting in nature and non-intrusive. The Court recognizes thatit is not uncommon for flirting to occur in any workplace.

Yet, even if the facts constituting sexual harassment may be categorized in ascale of gravity, it remains that the occurrence of sexual harassment in a workplace is in itself serious. As found by the Supreme Court ofCanada in Janzen v. Platy Enterprises Ltd., (SCC), [1989] 1 S.C.R. 1252 at para 56: . . . When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is ademeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it.

By requiring an employeeto contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being.

[17] This principle is found in the Canadian Forces Policy at DAOD 5012-0 on Harassment Prevention and Resolution which recognizes that “All CF members and DND employees have the right to be treated fairly, respectfully and with dignity in a workplace free of harassment, and they have the responsibility to treat others in the same manner.” It is a standard which has been enforced repeatedly by the Canadian Forces leadership, both administratively and through proceedings under the Code of Service Discipline, including at courts martial.

For instance, the court adopts the remarks made by Judge Lamont in the Standing Court Martial of R. v. Corporal Priemus , 2006 CM 2013 at paragraph 9 to the effect that victims of harassment have earned and are entitled to the respect of their peers, superiors and subordinates, adding that: . . . the court must also be concerned with general deterrence.

Members of the Canadian Forces and especially women members who are much more frequently the [victims] of this kind of behaviour, must have the assurance that their dignity is respected by fellow members. [18] The court acknowledges that flirtatious behaviour may occur between military members of sometimes varying ranks within a Canadian Forces workplace. Yet, in this case, the kind of behaviour was unwelcome and should have been seen as such on three occasions, over a significant period of time in relation to three female members who were subordinate in rank to the offender.

The court agrees with the prosecution that these circumstances, including specifically the rank of the offender, are aggravating.

Although there was no evidence of trauma caused to the victims in relation to the incidents, nor any evidence of operational impact on the units at the time, it remains that any harassing behaviour by a person of higher rank or appointment on a junior member may erode mutual confidence and respect for individuals and can lead to a poisoned work environment, as outlined in DAOD 5012-0. [ 7 ] The fundamental purpose of sentencing at court martial is to contribute to the respect of the law and the maintenance of military discipline by imposing punishments that meet one or more of the following objectives: to denounce the unlawful conduct; to deter the offender, but also others who might be tempted to commit such offences; to separate offenders from society, where necessary; to provide reparations for harm done to the victims or to the community; to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community; and, the reformation and rehabilitation of the offender. [ 8 ] The sentence must also take into consideration the following principles.

The sentence must be commensurate with the gravity of the offence, the previous character of the offender and his or her degree of responsibility. It should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. A court must also respect the principle that an offender should not be deprived of liberty if less restrictive punishments may be appropriate in the circumstances. In other words, punishments in the form of incarceration should be used as a last resort.

Finally, the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. However, the Court must act with restraint in determining sentence in imposing such punishment that should be the minimum necessary intervention to maintain discipline.

Both parties agree that the predominant objectives for offences of this nature are denunciation and deterrence, both general and specific; however, the sentence must also serve to acknowledge the harm done to the victim and the military community and leave room for the rehabilitation and reinsertion of the offender within that community. [ 9 ] Warrant Officer Wellowszky’s performance and conduct in his 24-year career as a reservist have been strong and steady. He is described as a strong leader with unique command leadership.

His professionalism has constantly been praised as well as his competence, strong ability and dedication. His current commanding officer emphasized that Warrant Officer Wellowszky is a highly effective and dedicated leader as a strong mentor who has made a significant contribution to The Royal Regiment of Canada and the Canadian Armed Forces.

There is no doubt that the events that led to the charges have had a serious impact not only on the victim, but also on his family, as expressed in the document filed in court at Exhibit 10. [ 10 ] In addition to the objective seriousness of these offences, where persons found guilty are liable to imprisonment for a term not exceeding five years and to dismissal with disgrace from Her Majesty’s service respectively, the Court considers the following elements to be aggravating in the circumstances of this case: (

a) The circumstances surrounding the commission of the offences : Unlike the facts in Morgan , the events that led to the charges are very serious in the context of a disgraceful conduct and harassment of a sexual nature. The level of physical force used to abuse the sexual integrity of the victim who was of a lower rank is important. The repetitive advances of the offender toward his victim showed an escalation in the use of force as well as a selfish attitude fuelled by the consumption of alcohol, despite the clear and unequivocal messages of the victim to stop his behaviour and leave her alone. (

b) The impact on the victim and the Canadian Armed Forces : There is no doubt that the events that took place on 15 and 16 March 2014 had a serious impact on the victim, both personally and professionally. Her statement speaks eloquently about her trauma and financial loss as a result. However, the impact of these events on her has caused an equally serious damage to the institution. She

now feels unable to carry out her responsibilities and her role as a leader in the Canadian Armed Forces because of the impact of theseevents, and she contemplates taking her release from the Forces as she no longer feels capable of leading and managing troopseffectively. During the hearing, the Court asked the prosecution if the victim had received proper support and assistance, but it wasunknown. I trust that the chain of command will make sure that she can regain confidence in her ability and qualities that werecommensurate to the rank of warrant officer she now holds. (

c) The events took place during an official gathering at a mess dinner in a public area, but also in the female bathroom: Theparticipants at the mess dinner at the Fort York Amoury were all in uniform. Warrant Officer Wellowszky appeared to be in a high stateof intoxication to the point of being sloppy and almost falling down. At his rank and level of experience, a senior non-commissionedmember should not allow himself to reach such a state of drunkenness, which contributed directly to his subsequent behaviour with thevictim. The events that took place in the bathroom are very serious and totally unacceptable.

Everyone should feel safe and secure at apublic event amongst colleagues, but even more so in the privacy of their own gender bathroom. [11] The Court considers the following elements to be mitigating factors in the circumstances: (

a) The pleas of guilty of Warrant Officer Wellowszky: The offender has admitted his guilt to the offences before the Court. Indoing so, he accepts full responsibility and the Court considers that it is an expression of remorse for his actions and is consistent with hisactions with his wife that informed the Court that her husband has been open and honest about the situation and that he has soughtcounselling, including marriage counselling, and guidance from their local church. (

b) Warrant Officer Wellowszky’s service record: The offender has spent more than 24 years in the Canadian Armed Forces inthe Reserve component. The events that led to the charges are in contradiction with the strong qualities he has demonstrated throughouthis career. Acting in such a way after self-induced intoxication toward a female service person of a lower rank is uncharacteristic of theleader described by his commanding officer. Warrant Officer Wellowszky’s past service record is at least consistent with the suggestionthat this episode is an isolated incident that should not reoccur. (

c) The absence of a criminal or disciplinary record: The offender has no prior criminal conviction and it is his first encounterwith the military justice system. (

d) The family and financial situation of Warrant Officer Wellowszky: The offender is married and they have three children,aged 10, 11 and 13 years. Both Warrant Officer Wellowszky and his wife had to deal with the consequences of his actions and it hasaffected their relationship. There is no doubt that his actions caused serious difficulties to his family; however, they are hopeful that theywill recover over time. Warrant Officer Wellowszky is the sole income provider for his family.

He makes approximately $60,000 peryear for his civilian employment. [12] Both counsel agree that a fit and proper sentence should include the punishments of reduction in rank to the rank of sergeant, areprimand and a fine. However, the prosecution recommends that the fine should amount to $2,500, whereas the defence submits that afine of $500 would be sufficient in the circumstances, in light of the more severe punishments that compose the sentence. [13] The punishment of reduction in rank is very serious in a military context.

Its effect on a military offender and his brothers andsisters in arms is clearly visible, strong and immediate. The person is no longer deserving of that rank until he or she proves it can regainthe trust of his/her chain of command. Where the offender is a member of the Reserve Force, it may also have consequences to hiscivilian life and employment, see R. v. Smith, (1995) (CMAC), 5 C.M.A.R. 361.

The punishment of a reprimand is apublic denunciation of the offender’s behaviour. [14] These two punishments are aimed to denounce the behaviour and deter others who might be tempted to commit similar offences.When combined, it sends a clear message that the particular conduct and the behaviour of the offender were particularly serious in thecircumstances. As to the quantum of an accompanying fine, it mainly serves to specifically deter the offender when it is added to theother punishments.

The quantum of that fine should both reflect the degree of responsibility of the offender and his particularcircumstances. [15] In the case at bar, the fine supplements two punishments combined, including the severe punishment of reduction in rank whichsits immediately after detention in the scale of punishments prescribed in subsection 139(1) of the National Defence Act. A fine of themagnitude proposed by the prosecution would be unduly severe when the sentence is examined in its entirety.

FOR THESE REASONS, THE COURT : [ 16 ] FINDS you guilty of one count of behaving in a disgraceful manner, under

section 93 of the National Defence Act ; and finds you guilty of one count of conduct to the prejudice of good order and discipline under

section 129 of the National Defence Act . [ 17 ] SENTENCES you to the following punishments: reduction in rank to the rank of sergeant, a reprimand and a fine in the amount of $1,000, payable immediately. Counsel : Major A.-C. Samson for the Director of Military Prosecutions Mr Brendan Neil, Brendan Neil Barrister & Solicitor 466 Speers Road, 3rd floor Oakville, Ontario L6K 3E9 Counsel for Warrant Officer R.A. Wellowszky