Military justice before the Supreme Court of Canada: R v Vu

On Tuesday, 16 January 2024, the Supreme Court of Canada (SCC) will hear the appeal in R v Vu, 2023 CMAC 2.  This case concerned allegations of sexual assault prosecuted under the Code of Service Discipline before a Standing Court Martial.  As is often the case in matters concerning sexual assault, consent was a central issue.  

The complainant testified that she did not recall all of the material events.  However, evidence was presented to the court martial that demonstrated the complainant's consent to the sexual activity.

Both the complainant and accused were intoxicated from the consumption of alcohol.  And this prosecution turned in large part upon whether the complainant was incapacitated by extreme intoxication.  Among other statutory provisions, this factor engaged section 273.1 of the Criminal Code.  Subsection 273.1(2) relates to circumstances in which consent is not obtained, including when the complainant is unconscious or for any other reason (e.g., extreme intoxication).

The military judge at first instance held that the accused sought consent from the complainant, that consent was given before, and throughout, the sexual activity, and that the complainant, though intoxicated, was not so severely impaired that she was incapable of giving consent.

The Director of Military Prosecutions (DMP), representing the Minister of National Defence (MND), sought appeal before the Court Martial Appeal Court of Canada (CMAC).  In a 2:1 decision, the CMAC upheld the trial judge's acquittal.  The majority of the court, consisting of the Chief Justice and Justice Trotter, a leading criminal law jurist from the Court of Appeal for Ontario, held that, though the military judge may have made minor errors, these did not materially affect the outcome of the trial.  Dissenting, Justice McVeigh, held that a new trial should be ordered.

Justice McVeigh also observed that, up to that point, no Canadian court (particularly appellate court) had yet offered meaningful interpretation of subsection 273.1(1.2) of the Criminal Code, which states that the "... question of whether no consent is obtained under subsection 265(3) or subsection (2) or (3) [of section 273.1] is a question of law ...".  Consequently, the judgment from the SCC will have an impact not only on military justice and courts martial, but also the prosecution of sexual assault before civil courts of criminal jurisdiction within Canada.

And, as the grounds of the MND's appeal turned on a question of law, and in light of the dissent in the judgment, the Crown had a right of appeal to the SCC.

Global Military Justice Reform contributor Rory Fowler has provided commentary on this case, which can be found here: Judgments from the Court Martial Appeal Court of Canada – R v Vu, 9 January 2024.

Unfortunately, this hearing will not be webcast live.  However, those who may wish to obtain additional information regarding this hearing, can find the relevant information here: R v Vu, SCC Docket 40655