Leave to appeal denied

The Supreme Court of Canada has denied the appeal of an acquittal at general court-martial for sexual assault.

38838 Her Majesty the Queen v. Sergeant K.J. M.

The respondent was charged with sexual assault contrary to s. 271 of the Criminal Code, R.S.C., 1985, c. C‑46 , pursuant to s. 130 of the National Defence Act, R.S.C.,1985, c. N‑5 . He chose to be tried by a General Court Martial. The charge resulted from events that occurred in Scotland, where he and the complainant were deployed. The events took place late in the evening of the day of their arrival and overnight, when the two had sexual relations, which the complainant testified she did not consent to. The accused testified in a manner that supported a defence of consent. The military judge decided that the defence of mistaken belief in consent would not be put to the panel. At the conclusion of the trial, he instructed the panel that to find the accused guilty of sexual assault, the prosecution was required to have proven beyond a reasonable doubt both that the complainant did not consent and that the accused knew that the complainant did not consent. The panel returned a verdict of not guilty. The prosecution appealed the legality of the finding of not guilty to the Court Martial Appeal Court, which dismissed the appeal.

Of note to us familiar with the UCMJ is the prosecution's opportunity to appeal an acquittal.