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

On Saturday, 13 January 2024, this Blog indicated that the Supreme Court of Canada (SCC) would hear an appeal on 16 January 2024 arising from the Court Martial Appeal Court of Canada (CMAC) judgment in R v Vu, 2023 CMAC 2.  The matter concerned a prosecution for sexual assault and the central issue (as is often the case) was consent.  One of the aspects of consent was whether the complainant was so intoxicated that she could not consent to the sexual activity.

By virtue of the dissent at the CMAC, the Minister of National Defence (represented by the Director of Military Prosecutions) had a statutory right of appeal to the SCC.

In a somewhat anticlimactic development, the SCC issued it's judgement from the bench with brief oral reasons read out by Chief Justice Wagner: R v Vu, 2024 SCC 1.  The Bench was comprised of seven judges and split 6:1, with Justice O’Bonsawin dissenting.  (Justices Côté and Kasirer did not participate.) 

The majority adopted the reasons of the Chief Justice Bell and Justice Trotter at the CMAC; Justice O'Bonsawin adopted the reasons of Justice McVeigh (who dissented at the CMAC).  While the majority of the SCC agreed with all of the justices of the CMAC that the military judge engaged in some improper speculation, they shared the view of the majority of the CMAC that those comments did not undermine the military judge’s fundamental findings.