Judgments from the Court Martial Appeal Court of Canada – R v Vu

9 January 2024

 

In the previous Blog post, we “read between the lines” of the judgment in R v Bruyère, 2023 CMAC 1, handed down 21 February 2023.  Now, we will turn our attention to R v Vu, 2023 CMAC 2, which was handed down 27 February 2023, and which is the subject of an appeal to the Supreme Court of Canada (SCC).

As with R v Bruyère, R v Vu was an appeal by the Minister of National Defence (MND), represented by the Director of Military Prosecutions (DMP).  Like the appeal in R v Bruyère, the appeal in R v Vu was unsuccessful.  The judgment from the Court Marial Appeal Court (CMAC) included a dissent, offering the MND a right of appeal to the SCC as of right.  And the MND has exercised this right: His Majesty the King v Private D.T. Vu, SCC Docket 40655.  This appeal will be heard on 16 January 2024 and will provide the SCC with an opportunity to revisit the judgment in R v G.F., 2021 SCC 20.

However, the judgment in R v Vu is potentially more controversial, because of the subject matter of the prosecution and the central issue addressed by the court martial and the CMAC.  This appeal concerned a prosecution of sexual assault contrary to s 271 of the Criminal Code.  Both the trial and the appeal focused on the proof of whether the complainant consented to the impugned sexual touching and the complainant’s capacity to consent in light of extreme intoxication.  And the appeal before the SCC will have an impact not only on the military justice system, but the Canadian criminal justice system.

Our discussion below will focus on the central issue arising in that case: proof of the absence of consent when both complainant and accused are heavily intoxicated.  And this matter was characterized by a complainant who did not have a recollection of the sexual act and an accused who could provide corroboration of his efforts to seek consent.  Both the judge at first instance, and the CMAC on appeal, also had to evaluate whether the complainant lacked the capacity to consent.

Finally, there is a potential “elephant in the room” regarding how extreme intoxication is relevant to the law as it applies to the accused and to the complainant.  This “elephant” arises principally out of perception of whether there is a double-standard in the law.  However, that was not a central factor in the judgment; consequently, I will deal with this issue, tangentially, in my concluding comments.

 

R v Private Vu, 2021 CM 4012; aff’d 2023 CMAC 2

The underlying facts in this matter were described in the judgment of the CMAC by Justice McVeigh – the dissenting judge – at paras 44 to 52, and the majority – comprised of the Chief Justice and Justice Trotter – concurred with this iteration of the relevant facts.  A more detailed iteration of the underlying facts relied upon by the military judge may be found at R v Private Vu, 2021 CM 4012.  And I would encourage any reader of this Blog to read both the judgment at first instance as well as the judgment of the CMAC.

Private Vu (who was a Private at the material time of the allegations but was subsequently promoted to Corporal) was charged with four offences.  (For consistency, I will refer to him as Private Vu, or “the accused” in this discussion.)  The principal charge, which was the primary focus of the trial at court martial, and the subsequent appeal, was sexual assault, contrary to section 271 of the Criminal Code, and incorporated into the Code of Service Discipline by virtue of para 130(1)(a) of the National Defence Act (NDA).

The three other charges related to an audio/video recording that was made by Private Vu during the sexual contact that gave rise to the allegation of sexual assault.  These charges consisted of allegations that: (1) the making of that audio/video recording constituted the offence of voyeurism contrary to subsection 162(1) of the Criminal Code; (2) the subsequent showing of that audio/video recording to a colleague constituted the offences of distributing, transmitting, making available or advertising both a voyeuristic recording (subsection 162(4) of the Criminal Code) and an intimate image of the complainant (section 162.1, of the Criminal Code).

And this recording featured prominently in the reasons for the acquittal on the principal charge of sexual assault.

Private Vu was found not guilty in relation to all four offences.

The appeal by DMP focused on the principal charge of sexual assault, and that will be the focus of the discussion below.

For brevity, the acquittals in relation to the charges relating to sections 162(1), 162(4), and 162.1 of the Criminal Code were based upon the following:

1. The military judge found that the audio/video recording made by Private Vu did not actually depict the complainant. The military judge found that, some parts of the complainant’s body (e.g., a leg, an arm, the side of her neck and face) appear on screen for brief moments, less than a second, when she moves on four or five occasions. However, these fleeting images, even when paused, do not allow a viewer to see any distinguishing features which would allow recognizing the complainant.
2. Consequently, since the complainant was not actually depicted in the audio/video recording, it did not constitute a voyeuristic recording for the purposes of distributing, trafficking, or transmitting such a recording. Nor did it constitute an intimate image of the complainant.

 

The video in question purportedly depicted the accused performing oral sex on the complainant.  The military judge also held that “… reasonable persons might argue that a visual recording of a person performing oral sex on another is just as much a visual recording of the person performing the act than of the person receiving it, regardless of whether that person is visually recognisable.”  However, “… expanding the offence to include non-visible participants would … exceed the powers granted to … a judge …” [R v Vu, 2021 CM 4012, paras 149 and 150].

 

Elements of the Offence – Sexual Assault

For the purposes of the discussion below, we will focus on the allegation of sexual assault.  The prosecution was commenced prior to the MND issuing direction to DMP and the CFPM to refer sexual assault allegations to civil authorities and courts and, in any event, as is presently evident, not all allegations of sexual assault arising within the CF are referred to civil authorities.

It will be useful to revisit the elements of the offence of sexual assault so that we can identify the key elements disputed at trial and in the appeal.  In addition to proving identity, and relevant jurisdictional elements such as date, time, and place of the alleged offence, the prosecutor must also prove, beyond a reasonable doubt that:

1. The accused applied force to the complainant;
2. That the force was sexual in nature; and
3. That the complainant did not consent to the application of force of a sexual nature (which can include withdrawing consent).

 

These elements form the actus reus of the offence.

Whether the complainant consented to the application of force of a sexual nature (i.e., the “sexual touching”) is determined based upon subjective inquiry.  If a complainant states that she or he did not consent to the sexual touching, and the complainant is believed by the trier of fact, then the “absence of consent” will be established.

The prosecutor must also prove that the accused demonstrated a blameworthy state of mind (the mens rea) – in other words, the intent to perform sexual touching, notwithstanding the absence of consent.  In prosecutions of sexual assault, “reasonable but mistaken belief in consent” can be a factor.  This is distinct from the element of the actus reus that is the “absence of consent”.  In other words, it is possible to have a circumstance in which the complainant subjectively did not consent to the sexual touching, but where there are grounds upon which the trier of fact can determine that the accused had a reasonable but mistaken belief that the complainant was consenting.

However, the accused cannot be reckless or wilfully blind regarding the lack of consent.  The accused cannot assert a “mistaken belief in consent” where the accused ignored or disregarded factual circumstances that would indicate that the complainant did not consent, or had withdrawn consent, to the sexual touching.  Nor can the accused successfully assert a “reasonable but mistaken belief in consent” where the accused did not take reasonable steps to ascertain consent.  (That would not be a reasonable belief in consent).

 

Court Martial

The principal contested element in the prosecution of Private Vu was whether the complainant consented to the sexual touching, and a relevant factor was whether there was an absence of consent because the complainant lacked the capacity to consent.  A secondary issue in the appeal concerned the military judge’s analysis of the evidence presented to the court martial.

The sexual touching in question related to Private Vu performing oral sex on the complainant.  This act transpired over a period of a few minutes.

The military judge held that the complainant did, in fact, consent to the sexual touching and that, despite her intoxication, she had the capacity to consent.  The military judge also held, in the alternative, that even if the complainant did not consent (due to incapacity from intoxication), the accused had a reasonable but mistaken belief in consent in light of the accused expressly seeking consent at the outset of the sexual activity and the complainant’s responses to the accused’s questions immediately before, and during, the sexual touching.

The evidence that was presented to the court martial consisted of viva voce testimony from the complainant and three other witnesses: Private Power and Aviators Stanutz and Leblanc.  All of these witnesses were called by the prosecution.

For reasons discussed below, the military judge held that the three witnesses other than the complainant were unreliable, (and, in at least one instance, lacked credibility).

In addition to the viva voce testimony, the court martial also received into evidence a variety of exhibits including a voluntary statement made by the accused to the investigating military police and the audio/video recording made by the accused on his personal phone of the sexual encounter with the complainant.  This recording was pivotal evidence.

At trial, the accused admitted to many of the elements that the DMP would have been obliged to prove beyond a reasonable doubt, including: the identity of the accused, the place and time of the alleged offences, as well as the sexual nature of the physical contact between the complainant and accused.  The focus turned to the issue of the complainant’s consent.

The majority of the CMAC panel observed at para 8 of their judgment:

The first task undertaken by the Military Judge was to express the disgust he felt while watching the crude images of Pte Vu performing oral sex “on an invisible partner who is obviously intoxicated”. He further opines that, there is something fundamentally inappropriate in having “sexual activity with a person who [sic] one barely knows and is drunk to the point of having difficulties to walk, as evidenced here”. We agree with his observations. Pte Vu’s actions were reprehensible. However, the Military Judge rightly concludes that it is not for him, nor, we suggest, is it for this Court, to pass moral judgment. The unwavering focus must be on whether a crime had been committed. After careful consideration, the Military Judge had a reasonable doubt, which he explained in great detail.

 

The expression of revulsion concerning the video was a common theme among the judges.  It was also something seized upon by some commentators as representing a disturbing aspect of the case.  As one academic from the University of British Columbia stated: “… if this is consensual sexual activity with a person who has the capacity to consent to it, why is everyone so quick to say how disgusted they are by the accused’s actions? I think that reaction signals where the error is in this case.”

I suggest that it this was a largely unnecessary assertion.  It was not relevant to the determination by the military judge, nor by the CMAC.  There is a sense that the statements – which are not a necessary part of the analysis of the evidence or law – are intended to mitigate against potential emotional responses to analytical determinations.  Rather than signalling an error in the judgment at first instance or by the majority of the CMAC, it signals fear among judges of censure if they do not condemn an act that, notwithstanding that it would likely seem distasteful to many, based upon the evidence and the law, does not warrant criminal sanction.

After all, the Criminal Code and the Code of Service Discipline punish criminal (or equivalent) misconduct.  Whether someone does something that another person might fight ‘distasteful’ is not particularly relevant if it does not also describe criminal misconduct.

 

The Witnesses

There were, essentially, five witnesses to the events described in the allegations: the complainant, S.B.; the accused, Private Vu; Aviators Stanutz and Leblanc; and, Private Power.

Regarding the three witnesses other than the complainant and the accused:

• The Military Judge concluded that Aviator Stanutz was “significantly challenged as to her recollection of the events” and lacked credibility due to lies and inaccuracies that arose during cross-examination.
• While Aviator Leblanc was not caught in direct lies, as was the case with Aviator Stanutz, his testimony did not fare well. The Military Judge observed that Aviator Leblanc had difficulties relating a logical sequence of events, even in direct examination.
• As for Pte Power, he admitted that his recollection of events on the night of the incident was foggy. Most of his testimony related to discussions about a gathering of the principal persons involved in this scenario, which occurred the following morning.

 

As is often the case in the prosecution of allegations of sexual assault, the key evidence was provided by the complainant and the accused.  And, as is unfortunately not uncommon regarding allegations of sexual assault, the witnesses, including the complainant and the accused, were impaired by alcohol.  This impairment can be relevant to both the actus reus of a lack of consent and the mens rea.

And I note, tangentially, that alcohol and alcohol abuse within the CF is a topic that was recently raised in some news coverage.  And part of that coverage signalled varied speculation regarding policies relating to CF messes and institutional culture.  Notwithstanding that this is an issue that merits discussion – certainly more grounded discussion that the largely speculative commentary in the news media – that is not the focus of the present Blog post.

Impairment can affect at least two of the criteria relevant to the reliability of a witness.  A witness’ reliability – as distinct from their credibility – depends upon three factors: the ability to observe, the ability to recall, and the ability to recount events at issue.  Impairment by alcohol can impair the ability to observe and to recall events.  And this was certainly a factor in this prosecution.

Additionally, as observed above, in addition to multiple issues of reliability, the military judge concluded that Aviator Stanutz also lacked credibility.

In contrast to the other witnesses called by the prosecutor, the military judge found the complainant credible.  And the military judge held that the complainant’s testimony, to the extent of the recollection that she acknowledged, was reliable.  However, the complainant provided very little in terms of details concerning the contested elements of the offence.  As the military judge noted at para 58 of his judgment:

At that time, [the complainant] assessed that her degree of impairment would have been an 8 out of 10 stating that her world was spinning around her, that she needed to sit down, and considered going back to her room. Things went black for her at that point. Her testimony does not allow a conclusion to be reached as to what time she would have experienced the impairment level and feelings she described. She claims having no memory of what happened afterwards until she woke up the next morning. She testified having had one experience in her life of drinking to excess where she had no recollection of events the next day.

 

The complainant testified that she only learned of the sexual encounter the following day from others, including Private Vu.  At para 60 of his judgment, the military judge stated:

… [The complainant] was informed that an audio/video recording of the sexual activity had been made. She had no memory of having been recorded and said that she would not have consented to be recorded. She said Private Vu [as he then was] explained that the recording had been made to record her consent to the sexual activity that took place.

 

Consequently, based solely upon the complainant’s testimony, the prosecution was not in a position to establish, beyond a reasonable doubt, that the complainant did not consent.  While she may have asserted that she would not have consented to the sexual act or the recording, without her recollection of the events, she was not in a position to state that she did not actually consent.  Thus, the prosecution relied upon incapacity to consent due to extreme intoxication.

At trial, DMP also advanced the argument that the complainant was unconscious for portions of the sexual activity and that the military judge should infer that, during these periods, the complainant was unconscious, and therefore, incapable of consisting (or withdrawing consent).

Although Private Vu made a voluntary statement to the military police, he did not testify at the court martial.  His statement to the military police was admitted as an exhibit, with the consent of the defence.  However, as he did not testify, this statement was not tested through cross-examination.  Additionally, his audio/video recording was admitted as evidence.  This recording was crucial in filling in the gaps left by unreliable viva voce testimony, or an absence of testimony, and it largely corroborated Private Vu’s version of events.  Indeed, Private Vu asserted that, in light of his training relating to Operation HONOUR, he made the recording in order to record the complainant’s consent.

[And I note that some commentators have suggested that Op HONOR was an “abysmal failure” and that the fact that it is still invoked in sexual assault cases arising in the context of the CF speaks volumes about how inappropriate the concept of ‘honour’ is in this context.  I would tend to agree that Op HONOUR was not a success.  There were many flawed aspects of that policy – although I suspect that some of what I consider to have been flaws with that policy are not the same flaws upon which select commentators might focus.  However, raising those criticisms in the context of Private Vu’s mention of Op HONOUR misses the mark completely.  On the contrary, Private Vu’s comments regarding Op HONOUR tend to signal that he was alive to the need to obtain consent, and the consequences that he would face if he were accused of sexual misconduct.  Moreover, the fact that he believed that he needed to record the consent signals a fear that many CF members have that consensual sexual activity can lead to allegations of sexual misconduct, and the deleterious impact that such allegations can have.]

The military judge held that the recording showed Private Vu asking multiple times if the complainant consented to the sexual act he was about to perform. While the complainant’s vocalizations sounded mumbled, slurred, and faint in the video, the military judge identified at least eight affirmative responses from the complainant to the different inquiries made by Private Vu.

The video showed that the complainant was not unconscious (as the prosecutor attempted to argue) and that Private Vu did, in fact, seek the complainant’s consent.

As a result, on appeal, the focus was very much on whether the complainant’s level of intoxication would have vitiated her capacity to consent.  In particular, this offered an opportunity to examine recent amendments to the Criminal Code regarding consent as it relates to sexual assault.

Ultimately, the military judge determined that both the complainant and the accused were heavily intoxicated at the time of the alleged offence, although the accused may have been slightly less intoxicated than the complainant.  As Trotter J.A. observed at para 21 of the majority’s judgment, the military judge placed considerable weight on the video that the accused made, and which conveyed the complainant’s apparent consent to the sexual touching.

The military judge accepted the complainant’s explanation why she texted the accused, the following day, to say “… it’s OK I wanted it …”.  The complainant testified that she lied in the text to cheer up Private Vu who seemed to be quite depressed when they discussed the encounter.  She also testified that she continued to hang out with Private Vu for about one week after that meeting.

The military judge also accepted the complainant’s evidence that she had no recollection of the events and sent the text to Private Vu in an attempt to “move on and forget about the unfortunate incident of the night before”.

 

Judgement on Appeal

The appeal focused on elements of s 273.1 of the Criminal Code:

 

Meaning of consent

273.1 (1) Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

Consent

(1.1) Consent must be present at the time the sexual activity in question takes place.

Question of law

(1.2) The question of whether no consent is obtained under subsection 265(3) or subsection (2) or (3) is a question of law.

No consent obtained

(2) For the purpose of subsection (1), no consent is obtained if

(a) the agreement is expressed by the words or conduct of a person other than the complainant;

(a.1) the complainant is unconscious;

(b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1);

(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;

(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or

(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

Subsection (2) not limiting

(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.

 

In particular, subs 273.1(1.2) establishes that the determination of whether no consent is obtained is a matter of law.  At para 63 of her dissent, McVeigh J.A. observed that this provision had not been the subject of meaningful judicial interpretation.  After citing recent scholarship that discussed this provision, McVeigh J.A. held:

[65] Accordingly, in my view, s. 273.1(1.2) can be best understood as broadening the scope of where there can be no consent to reflect modern Supreme Court jurisprudence. An appellate court may review the circumstances enumerated by ss. 265(3), 273.1(2), and 273.1(3) as questions of law on the correctness standard.

[66] However, this does not open the door to an appellate court reviewing a trial judge’s factual findings of whether or not the complainant consented to sexual interactions with an accused on the correctness standard. Rather, on appeal from an acquittal, the Crown remains limited to arguing discrete legal errors. Therefore, absent a legal error, an appellate court cannot interfere with the trial judge’s findings and conclusion on whether consent was obtained.

[67] Before a court on appeal interferes with the decision of a trial judge, the court must also be satisfied that the trial judge’s error might reasonably be thought to have had a material bearing on the verdict (R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609 at para. 14 [Graveline]). While, the Appellant is not required to persuade this Court that the verdict would necessarily have been different, the onus on the Appellant is a heavy one (Graveline at para. 15).

[68] It is through the lens of this right of appeal that the alleged errors are considered.

 

The MND’s right of appeal is limited to matters that involves a question of law alone.  Thus, subsection 273.1(1.2) of the Criminal Code is pertinent, as that presents a ground of appeal for the MND.

When DMP brought his Notice of Appeal on behalf of the MND, he indicated only one ground of appeal: “… the Military Judge erred in concluding that the complainant had the capacity to consent to the sexual activity in question”.  However, in his Memorandum of Fact and Law, DMP amended the grounds of appeal, which were iterated as follows by the majority:

1. Did the military judge err in concluding that the complainant was capable of consenting to this sexual activity? This question can be separated in three sub-issues: Did the military judge err by:

i: Failing to give legal effect to the facts found in the video recording;

ii: Relying on improper inferences;

iii: Failing to resolve material evidentiary questions?

2. Did the military judge err in his obiter dictum by failing to consider the totality of the circumstances in his assessment of the defence of honest but mistaken belief in consent?

 

The Dissent

McVeigh J.A. identified three issues for the appeal: (1) Did the Military Judge fail to consider all of the evidence cumulatively? (2) Did the Military Judge assess the evidence based on a wrong legal principle? (3) What is the effect of the errors?

On appeal, DMP argued that the military judge failed to resolve issues about material evidence.  McVeigh J.A. rejected this argument, holding that it amounted to arguing that the acquittal was unreasonable (which was not a valid ground of appeal).  McVeigh J.A. also held that it was appropriate for the military judge to separate his judgment into component parts: “First, he sets out the law and extensively outlines the evidence in this case. He then comments that he will focus on the sexual activity and treat what occurred before or after as circumstantial evidence.”

However, McVeigh J.A. found fault with the military judge’s reliance on the video recording of the incident as the principal evidence upon which the issue of consent turned.  She held that the military judge failed to consider, cumulatively, the circumstantial evidence as well as the direct evidence (e.g., the video).  She held, at para 81: “In my view, the assessment of [the complainant’s] subjective ability to consent required a cumulative assessment. Pte Vu’s statement to the Military Police should have been a key component in this analysis as well as other witnesses’ evidence of S.B.’s level of intoxication. The video evidence and the circumstantial evidence should have been considered …”

McVeigh J.A. also asserted that the military judge relied on speculation.  At paras 93 and 94:

[93] Addressing whether S.B. was unconscious at the end of the recording, the Military Judge noted her “apparent absence” of movement, suggesting that S.B. may have fallen unconscious. Notwithstanding this finding, the Military Judge also found:

[97] … However, this is not the only possible inference. Without a view on her body or face, I cannot discount the fact that she may have moved her knee voluntarily and retreated to a state of simulated sleep to avoid the understandable embarrassment stemming from the situation. Given that she was conscious and responsive only seconds earlier, it is a hypothesis that I simply cannot dismiss.

[94] The Respondent at trial did not argue nor mention that S.B. was potentially feigning sleep. This hypothesis was not put to S.B. nor was it argued before the Military Judge – this simply was not a part of defence submissions at the trial. This speculation is first encountered in the Military Judge’s decision. [emphasis in original]

 

McVeigh J.A. concluded that the military judge failed to consider all of the evidence as a whole.  This, in turn, led him to speculate, improperly, about alternative theories.  McVeigh J.A. also held that the military judge continuously sought corroboration, despite finding the complainant credible and making factual findings that the complainant was extremely intoxicated from alcohol.

Consequently, McVeigh J.A. held that the military judge erred at law in concluding that the accused was not reckless regarding consent.  In her view, the military judge erred regarding both the actus reus and the mens rea.

 

The Majority

The Majority, in reasons that were briefer than that of McVeigh J.A., held that the military judge demonstrated that he was alive to the relevant evidence.  They agreed with McVeigh J.A. regarding two faults attributed to the military judge.  They shared her concern that the military judge engaged in problematic speculation regarding whether the complainant feigned sleep.  The also shared McVeigh J.A.’s concerns about the military judge’s musings about the lack of specific adverse effects of the complainant’s intoxication.

However, the majority concluded that, even if these passages in the military judge’s reasons could be characterized as legal errors, they must also have a material impact on the acquittal.  And, in their view, these tangential errors did not.

The crux of the majority’s succinct analysis is found at paras 25 to 32 of their judgment.  One of the principal bases of the majority’s rejection of the appeal is that a trial court is presumed to have considered all of the evidence (Solis Mendoza v Canada (Citizenship and Immigration), 2021 FC 203, para 37) and a trial court need not recite all of the evidence in order to signal that the court is, in fact, considering all relevant evidence: R v J.M.H., 2011 SCC 45, para 32).

The majority held:

[26] The Appellant faults the Military Judge for not having placed sufficient emphasis on the pre-video recording evidence and the post-video recording evidence. We disagree. That the Military Judge focused on the video is undisputed. However, there is evidence of “capacity” immediately prior to the sexual activity that militates against this argument. The only witnesses who could testify to events leading up to, and immediately after the sex act, Aviators Stanutz and Leblanc were found to be unreliable by the trial judge. It is not the role of an appeal court to resurrect unreliable evidence or rehabilitate unreliable witnesses.

 

Arguably, what McVeigh J.A. glosses over in her dissent was that the military judge found all of the prosecution witnesses other than the complainant to be unreliable (and, in some cases, not credible).  Their evidence was thus rejected.

The only testifying witness whom the military judge found credible and reliable was the complainant.  However, she expressly indicated that she had very limited recollection of the material events.

And the complainant’s inability to recall events does not equate to an absence of consent.  It equates to an absence of evidence.

The only direct evidence before the military judge regarding consent – as it pertained to the actus reus – was the audio/video recording made by the accused and the accused’s voluntary (but untested) statement to military police investigators.  As the majority held at paras 28 and 29 of their judgment:

[28] The Military Judge made reference to Pte Vu’s statement on several occasions. He was keenly aware of its relevance to the issues in dispute, especially as it related to the complainant’s degree of intoxication. He acknowledged that Pte Vu referred to the fact that S.B. appeared to be unconscious at the end of the sex act, when others barged into the room. That was, in effect only the second time Pte Vu appears to have “looked up” after beginning the sex act. On the first occasion when he looked up, he had enquired about S.B.’s enjoyment. Her response was immediate. On the second occasion, when he looked up, his attention was first drawn to the door and people entering. When Aviator Stanutz asked him, angrily, what he was doing, Pte Vu, in a matter of fact tone, told them that he was performing oral sex on S.B. According to Pte Vu’s statement, he did not know that S.B. was unconscious at any time during the sex act. There was no evidence that Pte Vu knew S.B. was sleeping prior to the moment he raised his head as the door was opened. At that point the sex act had ended. Whether S.B. was asleep immediately prior to the door opening is questionable given that the same type of responsive sounds can still be heard coming from her immediately prior to the door being opened.

[29] We acknowledge that the Military Judge did not consider Pte Vu’s statement to the extent that our colleague does in her dissenting reasons. Although we might have given Pte Vu’s statement greater weight, or used it in a different way, we cannot agree that the Military Judge failed to consider the statement in his assessment of the evidence. In our view, the Military Judge’s treatment of this evidence did not give rise to the legal error in J.M.H. and the other cases in this line of authority. Accordingly, we would dismiss this ground of appeal.

 

The majority also held at para 30 that, although the military judge’s reasons regarding mens rea were not as fully developed as his reasons for the actus reus (principally because of his conclusions regarding actus reus), they observed that the military judge nevertheless entertained a reasonable doubt regarding the accused’s blameworthy state of mind:

… It is clear from his reasons reproduced in para. 23 of these reasons, the Military Judge found that Pte Vu did not know, nor should he have known, nor was he reckless or wilfully blind as to a risk that S.B. had ceased to consent. As stated by Justice Moldaver for the majority in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, it is clear that the defendant’s knowledge, recklessness, or wilful blindness as to the complainant’s lack of consent is required:

A conviction for sexual assault, like any other true crime, requires that the Crown prove beyond a reasonable doubt that the accused committed the actus reus and had the necessary mens rea. […] The mens rea consists of the “intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched” (R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 42).

 

Conclusion

This appeal presented (and, for the SCC, presents) thorny issues.  One issue that was not the subject of the appeal – and which will likely not be the subject of the appeal to the SCC – is the seeming double standard when it comes to the intoxication of an accused and a complainant.  And there are valid reasons for what some might perceive as a double-standard.

An accused cannot typically rely on self-induced extreme intoxication as a defence when charged with sexual assault.  There is a relatively complicated history of jurisprudence that led to the enactment of s 33.1 of the Criminal Code.  This provision was enacted largely in response to the SCC judgment in R v Daviault, [1994] 3 SCR 63. In that case, although the Court confirmed the common law rule that intoxication is not a defence to crimes of general intent, the majority recognized that the Charter mandated an exception to the common law rule: where intoxication is so extreme that an accused falls into a condition akin to automatism, a conviction for the offence charged would violate ss. 7 and 11(d) of the Charter.  Section 33.1 treated extreme voluntary intoxication, foreseeable or otherwise, as a condition of liability for the underlying violent offence and not as a measure of fault based on criminal negligence.

Subsequently, in 2022, the SCC issued a judgment in R v Brown, 2022 SCC 18 that held that s 33.1 was unconstitutional and declared it of no force or effect.  This, in turn, led to a rather rapid response from Parliament, amending s 33.1 of the Criminal Code to its current form.

The application of s 33.1 of the Criminal Code did not arise in R v Vu.  The accused did not argue (and, in light of the evidence presently, would not have had a reasonable basis to argue) “extreme intoxication”.  However, I suspect that some CF members may be concerned about a perceived double-standard.  A cynical perspective might cause some to conclude that a complainant can “rely” on “extreme intoxication” to support a contention that there was no consent, while an accused is not permitted to rely upon the same factor as a defence.

However, that misconstrues the distinct nature of consent as an element of the actus reus and the blameworthy state of mind that an accused must demonstrate.  If “Person A” intends to touch another person, “Person B”, for a sexual purpose, then Person A must obtain consent.  There are a variety of ways that people seek consent, and not all of them are necessarily going to be fundamentally clear means of communication.  Arguably, people engaging in activities that could potentially bring criminal prosecution if intentions are not clear should endeavour to be clear in their communication.

Unfortunately, alcohol and other intoxicants often lead to unclear communication, and also impair a person’s ability to observe and recall events.  And it is not uncommon for sexual activities to coincide with voluntary intoxication.  And, even if Person A and Person B are both extremely intoxicated, liability under criminal law will still potentially lie with the person who intends to touch another person for a sexual purpose.

And these factors will become contentious when there are allegations of sexual assault.  The perception may thus arise that Parliament expects ‘responsible’ behaviour from a potential accused, but not from a potential ‘complainant’.  However, this conflates the impact of extreme intoxication regarding two markedly distinct elements of the criminal offence of sexual assault.  And the key factor is consent.  Anyone touching another person for a sexual purpose must take reasonable steps to obtain consent before doing so.  If consent is not obtained, then the person should refrain from touching the other person for a sexual purpose.  That likely sounds fairly simple and straight-forward on the written page; I suspect that, when someone is impaired by alcohol, it’s not that simple.  However, that is not a reasonable excuse.

I suggest that the lesson that any CF member should take from this broader factor is that it is markedly imprudent to become voluntarily extremely intoxicated.  If you commit criminal offences (at least, certain criminal offences) after voluntarily becoming intoxicated, you will likely not be able to rely on such a defence.  Moreover, you will also be impaired in your ability to observe or recall what transpired, further impairing your ability to defend yourself.

If I may be so bold as to suggest: if you limit your alcohol consumption, you will likely limit your liability under criminal law.

In R v Vu, the principal issue is whether the military judge erred at law in assessing whether the complainant consented to the impugned sexual activity and whether she was incapable of consenting.  In the alternative, it also turns on whether the accused was reckless regarding the complainant’s lack of consent or incapacity to consent.

The evidence in this matter was not ideal.  And, though this may be a cynical observation – it rarely is.  Of the five witnesses to the matter, three were unreliable (one of whom also lacked credibility).  That left the complainant and the accused.  The complainant had limited recollection of the material events, and the accused did not testify (and could not be compelled to testify and cannot be faulted for exercising his right not to testify).  However, the accused’s voluntary statement to the military police was admitted into evidence.  The lack of cross-examination of this statement reduces its utility.

That an extremely intoxicated accused engaged in sexual activity with another extremely intoxicated person and chose to record the encounter is likely distasteful to many people.  But we do not criminalize conduct that is subjectively distasteful.

The military judge considered the evidence before him.  He made findings of fact that the accused sought/obtained consent for the sexual activity before and during the sexual act.  When other persons entered the room, the accused stopped and only then noticed that the complainant was no longer conscious.  And, as both the military judge at first instance, and the majority of the CMAC, held, in that circumstance the accused was not unreasonable in believing that he had the complainant’s consent.

And, if I may be blunt (as I typically am), the fact that DMP doesn’t agree with the trial judge’s factual conclusions does not constitute a basis for appeal.  And that extends to the factual determination by which the military judge rejected the evidence of various witnesses as unreliable and/or incredible.

The issues upon which the military judge and the CMAC focused, to varying extents, and upon which the SCC will focus, relates to whether, in light of the totality of the evidence that was accepted by the trier of fact: (1) the complainant consented to the sexual touching; (2) the complainant was capable of consenting to sexual activity; and, (3) in the alternative, whether the accused made sufficient inquiry regarding consent.