The Supreme Court of Canada building in Ottawa on November 10, 2023.Spencer Colby/Globe and Mail
The Supreme Court of Canada has upheld the acquittal of a male soldier who videotaped himself asking a female soldier for consent and then having sex with her. The ruling marks the first time in five years and in more than 40 cases that a court has sided with a person accused of sexual assault on the question of guilt, and it is the first time in more than 40 cases that a court has sided with a person accused of sexual assault on the issue of guilt. This highlighted how difficult it is to obtain
This particular case involved a Canadian Armed Forces soldier who told police he had been trained in Operation Honor, a now-discontinued military program aimed at preventing sexual misconduct. He said he wanted to make sure he recorded the consent of the drunk woman who entered his room that January night four years ago.
According to the assessment of the male suspect during police interrogation, the woman was highly intoxicated. He rated her drunkenness at an 8 or 9 out of 10, and sometimes a 10.
The accused, Private DT Vu (now promoted to Corporal Vu), stated that the complainant had great difficulty walking and that two colleagues who took her back to her room “dragged” her along the way. The incident occurred that evening after a party in a separate room in the barracks at Camp Borden, Ontario. The identity of the complainant is protected by a publication ban.
Two Canadian military colleagues told military judge Commander Martin Pelletier that the woman was drunk and fell off a chair at a party. The two soldiers, a woman and a man, testified in court that they took her back to her room, took off her shoes and made her sleep in her clothes.
Private Vu was charged with sexual assault. Commander Pelletier, who acquitted the accused in 2021, said in his judgment that the defendant had “grossly violated the dignity” of the complainant, but had not committed any crime.
“‘Minimum competency’ is sufficient for consent,” Commander Pelletier said. He cited a Supreme Court ruling that said capacity to consent meant understanding the nature of the activity, and that refusing to participate was an option.
The Court of Military Appeals upheld Commander Pelletier’s conviction by a 2-1 vote, and the Supreme Court affirmed his innocence by a 6-1 vote in a three-paragraph court decision shortly after the January 16 court hearing.
The Supreme Court did not comment on whether minimal capacity was sufficient for consent, but noted that the trial judge’s reasoning was thorough. Justice Michelle Obonsowin was the only dissenter.
Elaine Craig, a sexual assault law expert at Dalhousie University’s Schulich School of Law, said the results highlight the challenges of prosecuting cases where the accused was severely intoxicated.
“It’s hard to imagine what would happen if there wasn’t enough evidence of this kind of incompetence from multiple sources,” she said of the case. She said that, in her view, the evidence as a whole showed that the complainant lacked capacity to consent.
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Lisa DuFremont, a professor at York University’s Osgoode Hall Law School who specializes in criminal procedure, said drunkenness cases are difficult to prosecute because the complainant usually has little or no memory of what happened. In the Vu case, “While some judges and juries may have found the defendant guilty given the level of intoxication, I also believe that the judge’s conclusion was reasonable given the evidence before me.” ” she said.
Criminal lawyer Joseph Neuberger said the case probably does not herald a change in direction for the Supreme Court, which is rooted in deference to trial judges’ evaluation of evidence.
Maj. Francesca Ferguson, a member of Private Vu’s legal team, said the Supreme Court “underscored the importance of leaving fact-finding to the judge, regardless of the outcome.” Our clients can now move on with their lives. ”
The first 50 seconds of the video show Private Vu asking the woman eight times if she had her consent to perform oral sex on her. Her responses included mumbling and slurred speech, but the judge found she sometimes answered “yes” and “please.” Her camera does not show her at any time except for four brief glimpses, including fleeting shots of her knees and the side of her neck. (Because she was not visible, the trial judge also acquitted the defendant of three additional charges related to the video itself, including voyeurism under the National Defense Act.) Prosecutors objected to these acquittals. No appeal was filed.)
But the video shows the two soldiers who took the woman into the room come back and express their dismay at what is happening. The male soldier separated Private Vu from the woman and physically removed him from the room. A female soldier testified that her accuser appeared to have fallen asleep during the sex act. Private Vu did not notice that she fell asleep because of her position during sex, she said.
The complainant himself testified that he had no recollection of the incident. Private Vu did not testify at trial, but police interrogation records and video were part of the evidence considered by the judge.
Military prosecutors argued that the complainants did not understand that they had the option not to consent. She didn’t know Private Vu’s true identity. And the two periods of 38 seconds and 16 seconds when she was completely silent indicated that she was unable to consent because she was asleep.
Commander Pelletier rejected the prosecution’s claims. He said the video was key in providing “evidence of consent to the sexual act” not only in the initial affirmation, but also in the “movements, words and noises” made by the accuser during the sexual act. Stated. Commander Pelletier accepted Private Vu’s statement to police that he first realized she might have passed out when people came into the room.
Prior to the Vu decision, the Supreme Court had sided with the plaintiffs and disadvantaged the defense in 42 consecutive sex crime cases, dating back to February 2018, when it last ruled in favor of the defense. Ta. In total, 17 appeals court acquittals were overturned in five years. In 16 of these cases, acquittals were replaced by convictions. (A new trial was ordered on the 17th.)
