R v Vu – Redux

29 January 2024

 

Almost 3 weeks ago, I published a (long overdue) Blog post on the judgment from the Court Martial Appeal Court of Canada (CMAC) in R v Vu, 2023 CMAC 2.  One of my motivations for doing so was that the matter was scheduled to be heard by the Supreme Court of Canada (SCC) the following week.  When the matter was heard by the CMAC, Justice McVeigh dissented, which provided a statutory right of appeal by the Minister of National Defence, represented by the Director of Military Prosecutions (DMP).  And DMP did just that.

The SCC heard the appeal on 16 January 2024 and delivered its judgment from the bench: R v Vu, 2024 SCC 1.  Six of the seven justices who heard the appeal adopted the reasons of the majority from the CMAC (Chief Justice Bell and Justice Trotter).  The sole dissenting judge, Justice O’Bonsawin, adopted the reasons of Justice McVeigh.

As a result of this outcome, there wasn’t much to add.  I penned a brief comment for the Global Military Justice Reform Blog, to which I am a regular contributor.

One of the conclusions that could be drawn from the SCC judgment was that the Court evidently didn’t believe there was much to add to the existing judgment.  People may draw their own conclusions regarding the fact that the judgment was delivered from the bench and, unlike many matters brought before the SCC, judgment was not reserved.  I interpreted that outcome, in part, as a subtle indication from the Court that, although the Minister (represented by DMP) may have had a statutory right of appeal, the appeal didn’t have much merit or didn’t introduce any issues that required the SCC’s intervention.

That said, where a party has a right of appeal – whether that party is an individual or the Crown – we should not be surprised when that party exercises their right of appeal (or even seeks leave to appeal, where such leave must be sought).  That is precisely how our appellate process works in Canada.

Thus, I was generally content to offer the brief comment that I offered on the Global Military Justice Reform Blog and focus on other issues.

Then, on Friday, 26 January 2024, Sean Fine, the “justice writer” for the Globe and Mail published an article discussing the outcome of R v Vu before the SCC.  And, in light of some of the observations and comments in that article, it would appear that more could be said.

Specifically, I will offer some observations regarding the role of Defence Counsel Services in this matter, from court martial to appeal, as well as their role generally.  And I will offer some observations regarding what I contend are criticisms of the SCC judgment that were presented in Mr. Fine’s article.  And I disagree with many of those criticisms.

 

Role of Defence Counsel Services.

In his article, Mr. Fine wrote:

Major Francesca Ferguson, a member of Private Vu’s legal team, said the Supreme Court “reinforced the importance of deferring to trial judges on their factual findings, regardless of the outcome. Our client can now move on with his life.”

 

That’s not entirely correct.  The quote may be accurate – and I doubt very much that Mr. Fine would attribute a statement to someone if that person did not make that statement – but his description of Major Ferguson is not.  Major Ferguson is one of the more experienced litigators at Defence Counsel Services.  And while she was certainly part of Private Vu’s (now, Corporal Vu) legal team, that very general descriptor does not capture her full role.  Major Ferguson was the lead counsel in this matter.  She represented the accused at court martial and then argued on his behalf before the CMAC and SCC.  She was the architect of the defence and the author of the response to the Minister’s appeals before both the CMAC and the SCC.

I can tell you that if I had been lead counsel in a matter that was argued all the way to the SCC, and was successful at each level, up to and including the SCC, I’d be a little bit annoyed if a national news reporter simply described me as “… part of the accused’s legal team …” rather than the lead counsel.

After all, as Mr. Fine observed, this was the first time in nearly six years and over 40 matters involving sexual offences, in which the accused/defence prevailed before the SCC.  So, let’s give credit where credit is due.

And this is an appropriate opportunity for me to highlight the work of the military lawyers at Defence Counsel Services.  It’s not a large team.  There are fewer lawyers in Defence Counsel Services than there are within the Canadian Military Prosecution Service (CMPS) headed by DMP.  Counting just the regular force personnel, defence counsel number in single digits.

And they play a vital role in the maintenance of discipline, efficiency, and morale of the Canadian Forces (CF), as well as the maintenance of the rule of law in the administration of the affairs of the CF.

A military justice system needs to be efficient and effective.  It also needs to be reliable.  Members of the CF and the Canadian public must have confidence in that system.  An independent judiciary and a CMPS that is free from political influence are both vital to the effective and efficient functioning of such a system.  And if there are factors that cause us, reasonably, to doubt the independence of the judiciary or to perceive political influence of prosecutors, then I suggest that appropriate legislative or policy changes are warranted.

And if we are to have confidence in the results of such processes, the military justice system also requires fearless and resolute defence counsel who are equally free from interference.  And I suggest that Defence Counsel Services has, time and again, demonstrated their value.

Some observers may conclude that I exhibit a preference or bias toward Defence Counsel Services, compared to, say, DMP.  And I acknowledge that I certainly am less critical of Defence Counsel Services than I am of DMP.

Part of the reason for that seeming bias is that most people – particularly leaders in the CF – will tend to favour the prosecutorial side of an issue.  The Crown, or military prosecutors, are seen as working on ‘the side of the angels’, particularly if a matter concerns allegations of sexual misconduct.  These are the people standing up for victims, standing up for law and order.  Heck, the Law & Order TV franchise has operated successfully for more than three decades on the model of depicting “… the police who investigate crimes, and the District Attorneys who prosecute the offenders …”.

And we’ll come back to that tag line.

If courts of criminal jurisdiction (which include courts martial) are to be more than mere star chambers or show trials, they require fearless and resolute defence counsel to test the prosecution’s case.  Defence counsel are not merely defending an accused – they are upholding a fair, impartial, and reliable system of criminal justice.  The confidence that we, the Canadian public, can have in a conviction is dependent upon whether the accused has been able to make full answer and defence to allegations.

Consider what the Rules of Professional Conduct for my own governing law society, the Law Society of Ontario, say about the role of a lawyer as advocate in “adversarial proceedings”.  Rule 5.1-1 states: “When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.”  Here’s how the Law Society describes that obligation in the amplifying commentary that follows the Rule:

… In adversarial proceedings, the lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law. The lawyer must discharge this duty by fair and honourable means, without illegality and in a manner that is consistent with the lawyer’s duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties’ right to a fair hearing in which justice can be done. Maintaining dignity, decorum and courtesy in the courtroom is not an empty formality because, unless order is maintained, rights cannot be protected.

 

And, presumably, at this stage in our awareness of criminal justice, I do not need someone like James Lockyer to explain what happens when an accused is prevented – for whatever reason – from making full answer and defence.  If we do not have a fair system, in which an accused can offer full answer and defence with the assistance of resolute and competent counsel, when facing the full might and resources of the Crown, then we are asking for miscarriages of justice.

In my work, I often encounter people – often senior CF personnel – who bemoan the “interference” by Defence Counsel Services in the efficient execution of military justice.  All too often, the lawyers at Defence Counsel Services are seen as the “bad guys” (and gals).  They are the annoying lawyers who frustrate the progress of military justice, often accompanied by the refrain that they are able to do so “… on a technicality …”.

But that song changes tune rather rapidly when the same critic of such checks and balances in military justice is, him- or herself, the subject of an investigation or complaint.

That’s one of the reasons why I stress the importance of the “Golden Rule” in statutory decision-making.  I want a robust criminal justice system or military justice system that will benefit Mr. Smith or Corporal Bloggins because I also want one that would benefit me if I were ever accused of an offence.  And so would you.  One cannot reasonably insist on an overly expeditious process when the accused is someone we supposedly “know” is guilty, and then insist on a full panoply of procedural and substantive rights when it is our own freedom or reputation that is at risk.  That would amount to rank hypocrisy.  Justice applies to us all or it applies to no one.

And, for all the senior officers in the CF who cannot grasp that simple concept, I suggest that you have no business dispensing military justice as an Officer Conducting a Summary Hearing (OCSH).  And, for all the unit legal advisors in the Office of the Judge Advocate General (JAG), if the senior officers you advise do not understand that concept, then I suggest you need to improve your efforts as a unit legal advisor.

Otherwise, you’re likely to encounter more judgments like Noonan v Canada, 2023 FC 618.  And if such circumstances arise, you can be confident that I will go out of my way to point out the miscarriage of justice.

So, if I seem to favour Defence Counsel Services, it is largely because I doubt that the leadership of the CF fully appreciate their value to the military justice system, or the institution as a whole.  Moreover, Defence Counsel Services does not typically exercise significant statutory powers (i.e., discretion) that affect the rights, interests, and privileges of CF personnel.  The chain of command does, on a regular basis.  And so does DMP.

And when DMP (or an officer exercising powers and functions on behalf of DMP) exercises his powers and functions in a manner that I believe is inconsistent with a prosecutor’s role as a “minister of justice”, then I may be inclined to offer critical comment.  And I suggest that one of the reasons why I do so is because I have noticed that the news media – particularly the national news media – are quick to condemn DMP or a prosecutor for not pursuing a prosecution, but are often markedly reluctant to offer any criticism if a prosecution is pursued where it could reasonably be argued that there was not a reasonable prospect of conviction or where the prosecution was not in the public interest.

While we should all be concerned about any instance in which there appears to be political interference in the exercise of prosecutorial discretion (and I have alluded to such concerns in the military justice system), I suggest we should also be concerned when prosecutorial discretion is driven by fear of criticism by the news media, particularly where such criticism may not be entirely objective or may be predicated upon selective narratives.

I also stress the importance of Defence Counsel Services from time to time to emphasize that CF personnel who are charged with Code of Service Discipline offences can have confidence in that service.

I regularly receive calls from CF personnel who wish to retain me to represent them before courts martial.  I am chuffed that you have such confidence in my ability that you wish to retain me for that purpose (and, let’s be honest, I’m pleased that you even know that I exist in the first place).  But I am typically going to redirect you to Defence Counsel Services.

Now, that may seem like a counter-intuitive business strategy.  Frankly, if it were examined in isolation, it would likely seem like a moronic business strategy.  All things being equal, a litigator should not be turning away clients and referring them to another lawyer, without a compelling reason for doing so.

But I do have a compelling reason, and it starts with basic ethics.  Defence Counsel Services has a legislated mandate to provide representation to persons charged with Code of Service Discipline offences and tried before courts martial.  And they do so free of charge.

I am licenced and competent to represent a person charged with a Code of Service Discipline offence and prosecuted before court martial.  And, frankly, I enjoy that role.  At this stage in my life, I wouldn’t pursue a vocation if I didn’t enjoy it.  But, if I were retained to represent someone prosecuted before a court martial, it would cost that client thousands of dollars.

For example, based upon what I know of the case in R v Vu, had I been retained to represent the accused at court martial, I can confidently suggest that it likely would have cost him at least $25,000 to $50,000 in legal fees (and I charge less than many of my contemporaries).  Plus, as the court martial was conducted at Asticou (in the National Capital Region) he would have had to cover my travel expenses to Ottawa, including accommodation.

Major Ferguson represented the accused free of charge.  And, as confident as I am in my abilities, I have also seen Major Ferguson in action, and I am confident in her abilities as well.  Indeed, I have confidence in all of the counsel at Defence Counsel Services.

When someone contacts me seeking to retain me to represent them at court martial, the conversation typically unfolds in a manner reflecting the above-mentioned factors.  Usually, the putative client sees the wisdom in seeking the assistance of Defence Counsel Services. Occasionally, I have to put forth a bit more effort to talk people out of retaining me.  And, on the odd occasion, I have had to talk people out of retaining me over the course of two or three separate conversations on different days.  I have even told people to “… take the week-end to think it over …”.  And, when they call me the following week, indicating that they have not changed their mind, I will again try to convince them to contact Defence Counsel Services.

And, yes, that does seem counter-intuitive.  But, as I indicate above, there is an ethical component to such a discussion.  I cannot, in good conscience, recommend that someone retain me at the cost of thousands of dollars, when I know that they can rely on Defence Counsel Services – which exists for that very purpose – free of charge.

There is also an element of self-preservation.  Clients can be quite keen to have my assistance.  And, again, it is quite a boost to one’s ego to know that clients have confidence in one’s abilities.  However, attitudes can change once the client starts to receive significant legal bills.  Large dollar amounts have a tendency to focus a person’s attention.

Furthermore, I regularly inform potential clients that, once a Code of Service Discipline process is concluded – regardless of how it is concluded – they will almost certainly face further administrative processes initiated by their chain of command.  Those matters do not generally fall within the mandate of Defence Counsel Services; but they do fall within my scope of practice.  It is therefore more sensible for them to save their money in the event that they require assistance with matters falling within the scope of public and administrative law, and outside the mandate of Defence Counsel Services.

There can be exceptions.  A conflict of interest can arise with Defence Counsel Services.  An accused may be one of several co-accused, who will be tried before the same court martial.  Or there may be a break-down in the solicitor-client relationship with the assigned counsel from Defence Counsel Services.  Such exceptions, and others, can arise.  But I suggest that anyone charged with a Code of Service Discipline offence should initially contact Defence Counsel Services.  That is their raison d’être.[1]

I am aware that in the Third Independent Review of the National Defence Act by the Honourable Morris Fish, C.C., Q.C. included observations and recommendations regarding the independence of Defence Counsel Services.  Those recommendations included the possibility that Defence Counsel Services could be “civilianized”. [See pages 38 to 43, paras 160 to 174 of the Report and Recommendation #12 in particular.]

However, the fact that such recommendations were made does not suggest that CF personnel (or anyone charged with a Code of Service Discipline offence) cannot have confidence in the representation from Defence Counsel Services.

Similarly, I have heard from some putative clients that people in their chain of command have suggested that the legal officers at Defence Counsel Services aren’t very good and that they are at Defence Counsel Services because “… no one else wants them …”.  Some have informed me that they were told that they couldn’t trust Defence Counsel Services, because they “… work for the chain of command …”.

Such assertions are nonsense.

For those inclined to suggest that the lawyers at Defence Counsel Services aren’t very good, I’d point out what Sean Fine pointed out on Friday: Major Francesca Ferguson was successful in defending against the DMP appeal before the SCC, which is the first time in six years that the SCC found in favour of a person accused of a sexual offence.  And if they aren’t very good, then why do academics like Elaine Craig complain that the conviction rate at courts martial is lower than before civil courts of criminal jurisdiction?

As for the assertion that lawyers at Defence Counsel Services “… work for the chain of command …”, see above.  Defence counsel at Defence Counsel Services have one client – the accused whom they represent.  And they do so resolutely.

I will add this, the current Director of Defence Counsel Services is Colonel Noor Ahmed.  I’ve known Colonel Ahmed for almost as long as he has been a legal officer in the CF.  He joined later in his career than some.  He and I served in Afghanistan together, and the fact that he did not receive greater recognition for his outstanding contribution to that mission is an unremedied oversight.  He is a mature and thoughtful lawyer and leader who would never tolerate any interference in the execution of his subordinates’ duties and functions.

In sum, while legislative or policy changes could be introduced to reinforce the independence of action of Defence Counsel Services, anyone charged with a Code of Service Discipline offence can have confidence that the counsel from Defence Counsel Services can represent them competently, resolutely and with independence of action.

And it won’t cost the accused a penny.[2]

 

R v Vu, 2024 SCC 1

So, let’s take a look at what Sean Fine recently had to say about the outcome of R v Vu.  I could suggest that, despite the fact that both the CMAC and SCC upheld the acquittal, Mr. Fine’s article seemed to focus on criticism of the outcome.  He emphasized – one might suggest, “cherry picked” – elements of the judgment that would encourage outrage at the outcome.

Mr. Fine also turned first to commentary from persons who were critical of the judgment and merely mentions in passing the comments from the accused’s lead counsel (who, as I indicate above, was misdescribed simply as being a member of his “legal team”).

And, while that is an accurate assessment of how Mr. Fine presents the narrative, I will acknowledge that it does represent some editorializing on my part.

So, let’s look, specifically, at the central issue: consent.

And, before I delve into what Mr. Fine reports, I will acknowledge that the comments that he attributes to various people almost certainly do not represent everything that each of those people likely said to Mr. Fine when he interviewed them.  We cannot be certain that the limited excerpts that are provided necessarily represent the broader tone, central conclusions, or the entirety of what the various persons stated.  All that I, or any reader, can know is that those are the statements that Mr. Fine chose to publish.  And I suggest that, in light of Mr. Fine’s long career as a journalist, and the accolades that he has received, he would not, and did not, knowingly misrepresent anything anyone said.

But I offer these observations in the context of my own experience with journalists.  Journalists sometimes seek my input on these types of matters.  And I will readily make myself available to offer insight to any journalist who wishes to contact me.  But I know from experience that not everything I say will be included in the eventual news article.  Indeed, sometimes the issues or observations that I consider to be the most important or informative will not be included, while tangential comments or comments on what I consider to be tangential issues will be.  One of the reasons why I offer commentary in a Blog is because I control the editorial content of what I say.

And my comments here are not intended as a harsh criticism of Mr. Fine.  He will have limited space in which to report the subject matter and it would be impossible to provide comprehensive statements from the various interviewees.  He faces limitations in time and the space allocated for his reporting.  However, Mr. Fine does control his narrative, and that is the narrative to which I will turn my attention.

Professor Elaine Craig from Dalhousie University’s Schulich School of Law, whose research and scholarship focuses on sexual offences, highlighted the challenges in the prosecution of cases where the complainant is severely intoxicated.

I agree.  In fact, I would go further to observe that it presents a challenge not only to prosecutors, but also to defence counsel, and judges and triers of fact.  And the Vu case did not involve just an intoxicated complainant – most of the witnesses were intoxicated, as was the accused.  That makes for a difficult case to prosecute, a difficult case to defend, and a difficult case to adjudicate.

However, I would be wary of any suggestion that the standards by which a criminal prosecution should be judged should be altered because of the intoxicated condition of witnesses.  And I am not suggesting that anyone interviewed by Mr. Fine was offering such a suggestion.  However, I have noticed a subtle inclination by some people, particularly when discussing sexual offences, that the burden of proof in criminal law is somehow too exigent.  And that is a slippery slope.

Mr. Fine goes on to quote Professor Craig as follows:

“If this type of evidence of incapacity, from multiple sources, isn’t enough, it is hard to imagine what would be,” she said of the case. In her view, she said, the evidence as a whole showed the complainant lacked the capacity to consent.

 

On this point I disagree.  Again, I do not know what else Professor Craig may have stated to Mr. Fine, but I do know what the presiding military judge held, and what was then discussed before the CMAC.

A total of four witnesses testified: the complainant, and three colleagues of the complainant and the accused.  (I use the term “colleagues” as that is the term that was used by Mr. Fine.  All five of these persons were junior trainees in the CF at the material time.)

Other than the complainant, S.B., the other witnesses who testified were Aviator Stanutz, Aviator Leblanc, and Private Power.

Of the three witnesses other than the complainant, the military judge – the judge who actually heard all the evidence and before whom the witnesses testified – held that all three lacked reliability.  The testimony of Private Power, in particular, was essentially disregarded due to a lack of reliability and frailty of his recollection of events.  Private Power was also not present when Aviators Leblanc and Stanutz purportedly confronted Private Vu.  The testimony of Aviators Stanutz and Leblanc differed considerably, and the military judge held that Aviator Leblanc appeared to have the least confidence in his recollection of events.  Here is what the military judge had to say about Aviator Leblanc’s reliability:

As it pertains to Aviator Leblanc, his recollection of events was significantly different from the testimony of Aviator Stanutz as it pertains to the details of the journey from the location of the party to S.B.’s room. In itself, it is not unusual. However, Aviator Leblanc came across as the witness who had the least confidence in his recollection of events, despite the fact that he was sober at the time. Most concerning was the illogic [sic] recollection he related, as it pertains to the anecdote of the fall of S.B. in the staircase in proximity of shovels and the implausibility of his recollection of events after he had left S.B.’s room, immediately after putting her in bed. Aviator Leblanc did not appear to make any significant efforts to reconcile his narration of events with logic and other evidence as to timings. Worse, he did not seem to care about whether his version made any sense. This reflects a lack of interest to be and appear truthful, admit weaknesses and correct misunderstandings which makes his testimony unreliable and non-credible. For him too, I conclude that it would be dangerous to rely on anything he said in court to convict Private Vu, unless his evidence is supported by other, credible evidence.

 

The military judge had even less confidence in Aviator Stanutz’s testimony and held that she, too, was unreliable and even less credible than Leblanc:

The testimony of both Aviators Stanutz and Leblanc, the only witnesses relevant to the assessment of S.B.’s capacity to form consent, raised significant credibility and reliability difficulties. Aviator Stanutz displayed significant efforts in her examination in chief to portray herself as a bright, even a top student. This character trait will no doubt serve her well in her career with the CAF, along with her obvious leadership capabilities. However, by volunteering details to signal her virtue and her apparent reliability in bringing to the fore evidence favorable to the prosecution she fell into obvious exaggeration and even, sadly, outright lies, which became quickly apparent under cross-examination by skilled counsel. Indeed, Aviator Stanutz lied when she said she did not drink before majority as it could result in trouble. She was underage at the party on 10 January 2020 and drank the alcohol that someone had purchased for her, like most other Canadian youths frequently do. In addition, her description of Private Vu holding a phone to the side to film himself while performing oral sex on S.B. was so far from the reality of what she had witnessed as evidenced from the audio/video recording that it leads me to question the reliability of her recollection. It also offers another indication of a dangerous propensity to embellish her testimony. I conclude that it would be dangerous to rely on anything she said in court to convict Private Vu, unless her evidence was supported by other, credible evidence.

 

The only witness that the military judge held to be reliable and credible was the complainant, S.B.  However, the complainant testified that she had no recollection of the sexual act that lay at the centre of the allegation.  The military judge held that she was credible regarding what she did remember; however, she remembered very little.  And that lack of recollection, itself, is not evidence of the absence of consent.

And this is an important juncture to stress a few factors.

First, the burden of proof rests with the prosecution.  The accused – regardless of the offence alleged – does not have to prove his innocence.  The prosecution must prove all elements of the alleged offence beyond a reasonable doubt.

Remember that tag line from Law & Order?  Well, District Attorneys (or, here in Canada, Crown prosecutors) do not prosecute offenders.  They prosecute people accused of one or more offences.  A person is only an offender after the person is found guilty of an offence.  And I find it disturbing that all too often people tend to presume guilt when discussing such matters in the news media.

I remember a great comment from Michael Edelson, one of Canada’s leading criminal defence counsel.  He is commonly asked how he could countenance defending people, or being retained by people, who are guilty of grave offences (and I am paraphrasing).  His response: “I have never been hired by a person who is guilty.”  And that is because the people who retain defence counsel like Mr. Edelson, people who are charged with criminal offences, benefit from the presumption of innocence.

Granted, the presumption of innocence is a legal construct.  It doesn’t mean that we are, all of us, innocent of all wrong-doing in our lives.  But this rebuttable presumption does place the burden of proving an offence on the Crown.[3]  And, in Canadian criminal law – including the prosecution of Code of Service Discipline offences – that burden is proof beyond a reasonable doubt.

As I noted earlier in this discussion, the principles that ensure that our criminal and military justice systems are fair, impartial, and reliable distinguish us from jurisdictions in which courts are more akin to star chambers or which conduct show trials.  The presumption of innocence and placing the burden of proof on the Crown are part of those principles, which distinguish us from jurisdictions in which people (including reporters, ironically) are thrown in a cell absent many of these procedural and substantive protections.

Second, as I described when I discussed this matter previously, one of the elements of the offence that the Crown was obliged to prove beyond a reasonable doubt in this matter – indeed, the principal contested element of the offence – was the absence of consent.  That is part of the actus reus or prohibited act.  Sexual assault is the application of force of a sexual nature (sexual touching) without the consent of the person being touched.

In R v Vu, the other elements of the actus reus were not in dispute.  What was in dispute was whether the complainant had consented (and, by extension, her capacity to consent).  Similarly, the blameworthy state of mind of the accused – the mens rea – was also in dispute.  Did Private Vu touch the complainant in a sexual manner knowing that she had not consented or had ceased to consent (or was reckless or wilfully blind to the risk that she had not consented or had ceased to consent)?

Often, the absence of consent is established by the prosecution when a complainant testifies that the complainant did not consent to the sexual touching (or had withdrawn consent).  It’s a subjective test.  If the complainant is believed, then that element tends to be proven.  It does not necessarily bar the possibility that the defence might prove that the accused had an honest (i.e., reasonable) but mistaken belief that the complainant was consenting; however, that is a separate issue, and it pertains to the mens rea and not the actus reus.

An accused cannot assume that consent is given.  There is no such thing as “implied consent”.  Silence in the face of sexual touching does not equate to consent.  Nor is passivity or ambiguous conduct representative of consent.

And we also know from R v G.F., 2021 SCC 20 – which examined section 273.1 of the Criminal Code defining “consent” in these circumstances – that the capacity to consent is a condition precedent to consent.  Therefore, if a person is incapable of consenting, then that person cannot have given consent.  By way of example, no consent is obtained where the complainant is unconscious (Criminal Code, para 273.1(2)(a.1)) or where the complainant is incapable of consenting to the activity for any reason other than being unconscious (Criminal Code, para 273.1(2)(b)).  In other words, subsections 273.1(1.2) and (2) of the Criminal Code permitted/required the military judge, as trier of law and fact, to determine whether there is another factor – such as extreme intoxication – that would render the complainant incapable of consenting to the sexual activity.

But in R v Vu, the complainant testified that she did not recall the sexual activity.  She could not reasonably testify that she did, or did not, consent.  And testimony that she would not normally, in such circumstances, consent, is not determinative of the issue.  What matters is whether she did, in fact, consent, or whether she was incapable of consenting.

What singles this case out as rare – if not unique – is that Private Vu made a video/audio recording of the sexual activity, including the moments when Private Vu sought and received consent from the complainant.  And that recording was admitted into evidence.  In fact, it was the military prosecutor who sought to admit the recording into evidence.  The Defence consented.

And the recording was clearly the principal evidence upon which the military judge relied.  And that is not surprising in light of the limitation of the viva voce evidence from the four witnesses who did testify.  The complainant had limited recollection of the sexual activity.  Aviators Stanutz and Leblanc were unreliable and lacked credibility.  Despite being sober, Aviator Leblanc’s recollection was markedly different than that of Aviator Stanutz, but just as unreliable.  And neither witness was seen by the military judge as credible.  Private Power was not present during key material events and the military judge concluded that there were significant frailties to his recollection.

So, I disagree with Professor Craig that the evidence as a whole clearly established that the complainant lacked the capacity to consent.  Frankly, the evidence from Stanutz, Leblanc, and Power didn’t establish much of anything, other than that they were not reliable witnesses.

And what the audio/video recording established – according to the military judge who viewed the evidence – was that Private Vu repeatedly sought, and received, consent from the complainant.  In fact, I suspect that, when she was interviewed for the Globe and Mail article, Major Ferguson likely informed Mr. Fine that the video depicted that Private Vu sought consent at least 8 times and received consent at least 8 times.

Ultimately, it doesn’t matter that I disagree with Professor Craig’s conclusion.  What does matter is that the trial judge disagreed with that conclusion, a majority of the CMAC disagreed with that conclusion, and six of seven judges at the SCC disagreed with that conclusion.  And I suggest that is because the evidence did not clearly establish that the complainant was incapable of consenting.

Certainly, intoxication can impair a person’s capacity to consent.  However, the mere fact of intoxication is not determinative of that question.  In R v Vu, the military judge was required to evaluate whether, in light of the evidence before him – or perhaps I should expressly state, the reliable and credible evidence before him – the complainant consented to the impugned sexual touching. And, in the face of unreliable (and discreditable) testimony on that issue, the military judge relied heavily on the recording that Private Vu made.  And in that recording, Private Vu sought the complainant’s consent multiple times, and the complainant was heard to give her consent on each occasion.

And, as the majority of the CMAC observed, the military judge did not ignore other evidence.  The military judge also took into consideration the statement that Private Vu made to the military police.

Furthermore, the majority of the CMAC held that the military judge entertained doubt regarding whether Private Vu demonstrated the requisite mens rea – the guilty mind.  They saw no error in the military judge’s analysis of that issue.   The military judge refused to equate brief moments of silence during the sex act with unconsciousness. Given the short period of time the sex act was being performed, the brevity of the periods of silence, the consent that the complainant gave at the beginning, the nature of the sex act, and the fact it did not change from that to which the complainant had consented, the majority of the CMAC held that the military judges’ reasonable doubt about proof of mens rea cannot be faulted.

And the judgment of the majority at the CMAC was adopted by six of the seven judges at the SCC.

Note too that those who argue that the trial judge’s determinations of fact and mixed law and fact do not merit deference, would then have to concede that the same approach would need to be applied in a matter such as R v G.F., 2021 SCC 20. In that appeal, which also examined consent in the context of section 273.1 of the Criminal Code, the SCC overturned the judgment of the Court of Appeal for Ontario, which had not afforded the trial judge due deference in determining whether consent was given and whether the complainant had the capacity to consent.

 

Concluding Observations

Some of us may be tempted to conclude that it is distasteful for someone who is significantly intoxicated to pursue sexual activity with another person who is significantly intoxicated, particularly where the two persons do not know each other particularly well.

But the criminal law does not punish people for being distasteful.  It punishes people for committing acts that Canadian society considers to be morally repugnant as codified in our legislated Criminal Code.  And that statutory framework defines what will be punished and how it will be punished.

And sexually touching another person, or other sexual activity, without the consent of that person is punishable under the Criminal Code.  But all of the elements of the offence must be proven beyond a reasonable doubt.

And in R v Vu, the prosecution failed to prove beyond a reasonable doubt that Private Vu touched the complainant, or engaged in sexual activity with the complainant, without the complainant’s consent.  In fact, the most reliable evidence that was presented to the court martial that tried the case – the audio/video recording made by Private Vu – clearly depicted the accused seeking, and receiving, consent several times.  That is what the trial judge determined.

And for the past several years, the SCC has stressed in appeals involving sexual offences that deference to trial judges is important.  They reinforced that principle in R v Vu.  And this is a SCC that, over the past 6 years, has consistently delivered judgments that have favoured the prosecution in matters involving sexual offences.  I contend that the judgment in R v Vu, 2024 SCC 1 demonstrates respect for the rule of law and that, where a trial judge in the military justice system has held that consent was obtained by the accused, that an acquittal on those grounds can only be overturned based upon an error of law.

 

[1] I note, tangentially, that with the bifurcation of the Code of Service Discipline into service offences tried by court martial and service infractions tried by summary hearing, a CF member may require assistance from privately retained counsel for the latter.  While Defence Counsel Services can offer limited assistance for service infractions, if a CF member requires robust assistance, and, potentially, representation, for such matters, they will likely have to turn to privately-retained counsel.

[2] And I continue to question whether the decision of the former Minister of National Defence, Anita Anand, to direct DMP and the Canadian Forces Provost Marshal to refer matters to civil authorities, was motivated in part to deprive CF personnel of the free assistance of Defence Counsel Services in order to make full answer and defence to allegations of sexual offences.  See: Rory Fowler “The MND’s New Policy and the Rule of Law” (19 November 2021) online: Blog, Law Office of Rory G Fowler <http://roryfowlerlaw.com/the-mnds-new-policy-and-the-rule-of-law/>; Rory Fowler, “Impact of Access to Justice on Sexual Misconduct Charges” (23 June 2022) online: Blog, Law Office of Rory G Fowler <http://roryfowlerlaw.com/impact-of-access-to-justice-on-sexual-misconduct-charges/>.  Even though he was very junior, Private Vu’s salary was sufficiently high that he likely would have been ineligible for Legal Aid in the province of Ontario.  Thus, he would have had to pay out of pocket for defence counsel, including at each level of appeal.  And he very likely would not have recovered those costs, even though he was successful at each level.  He would not have recovered the costs for the initial trial – which is likely the most expensive stage in the process.  And costs on appeal are entirely discretionary and are granted in one of two (2) circumstances: (1) where the conduct of the prosecution merits sanction, such as when it acts in a manner that is a marked and unacceptable departure from the reasonable standards expected of it, or, it acts in bad faith; or, (2) where other exceptional circumstances exist such that fairness requires that the individual litigant not carry the financial burden, such as where the Crown pursues a test case.  The CMAC judgment in R v Banting, 2020 CMAC 2 offers a tidy summary at para 23.  It is unlikely that costs would have been awarded here and, even if they were, they would cover only a small fraction of Private Vu’s overall legal expenses.

[3] And, similarly, the presumption of good faith dealing by the Crown does not mean that the Crown always acts in good faith.  It merely creates a rebuttable presumption whereby an applicant must present evidence establishing bad faith actions by the Crown.