Supreme Court of Canada building in Ottawa on Nov. 10, 2023.Spencer Colby/The Globe and Mail
The Supreme Court of Canada has upheld the acquittal of a male soldier who recorded video as he asked for consent from a female soldier and then performed a sex act. The decision marks the first time in five years and more than 40 cases that the court has sided with a person accused of sexual assault on the question of guilt, and highlights the difficulty of achieving convictions in cases where complainants were intoxicated.
This particular case involved a Canadian Armed Forces soldier who told police he had received training from Operation Honour, a now-cancelled military program aimed at preventing sexual misconduct. He said he wanted to ensure he recorded the consent of the drunken woman whose room he entered on a January night four years ago.
Even by the assessment of the accused man when he was being questioned by police, the woman was very intoxicated. He rated her drunkenness at an eight or nine on a scale of 10, and at times a 10.
The accused, Private D.T. Vu – now Corporal Vu, as he has since been promoted – said the complainant had such difficulty walking that two colleagues who brought her back to her room had “dragged” her part of the way. The incident happened after a party earlier that evening in another room at a military barracks at Camp Borden, in Ontario. The complainant’s identity is protected by a publication ban.
The two Canadian Forces colleagues told a military judge, Commander Martin Pelletier, that the woman was so drunk she fell off a chair at the party. These two soldiers, a woman and a man, testified in court that they had brought her back to her room, taken off her shoes and left her asleep, fully clothed.
Private Vu was charged with sexual assault. Commander Pelletier, who acquitted him in 2021, said in his decision that while the accused had “grossly violated the dignity” of the complainant, he did not commit a crime.
“Only a ‘minimal capacity’ suffices in order to be capable of consenting,” Commander Pelletier said. He cited a Supreme Court ruling that said capacity to consent means understanding the nature of an activity, and that refusing to participate is an option.
A military appeals court upheld Commander Pelletier’s ruling 2-1, and the Supreme Court affirmed the acquittal by a 6-1 count, in a three-paragraph ruling from the bench shortly after a court hearing on January 16.
The Supreme Court made no comment about whether minimal capacity was sufficient for consent, but said the trial judge’s reasoning had been thorough. Justice Michelle O’Bonsawin was the lone dissenter.
Elaine Craig, a specialist in sexual-assault law at Dalhousie University’s Schulich School of Law, said this outcome makes clear the challenges in prosecuting cases where the complainant was severely intoxicated.
“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.
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Lisa Dufraimont, a professor at York University’s Osgoode Hall Law School who specializes in criminal procedure, said prosecuting intoxication cases is difficult because usually the complainant has little or no memory of what happened. In the Vu case, she said, “some judges or juries might have convicted the accused given the level of intoxication, but I also think the judge’s conclusions were reasonable given the evidence he had before him.”
Joseph Neuberger, a criminal lawyer, said the case probably doesn’t portend a change of direction for the Supreme Court, and was rooted in deference to the trial judge’s assessment of the evidence.
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.”
The first 50 seconds of the video show Private Vu asking eight times whether he has the woman’s consent to perform oral sex on her. While her responses include mumbles and slurred words, the judge found she had responded at times with “yes” and “please.” The camera does not show her at any time, apart from four brief glimpses, including fleeting shots of a knee and the side of her neck. (Because she couldn’t be seen, the trial judge also acquitted the accused soldier of three additional charges under the National Defence Act related to the video itself, such as voyeurism. Prosecutors did not appeal those acquittals.)
But the video does show the two soldiers who had brought the woman to her room returning and expressing their dismay at what was unfolding. The male soldier pulled Private Vu away from the woman and physically expelled him from the room. The female soldier testified the complainant appeared to be sleeping during the sex act. Private Vu said that because of his position during the sexual act he had not noticed she appeared to have fallen asleep.
The complainant herself testified she had no memory of the events. Private Vu did not testify at his trial, but a transcript and video of his police interview were part of the evidence considered by the judge.
Military prosecutors argued that the complainant was incapable of understanding she had a choice not to consent; that she wasn’t aware of Private Vu’s identity; and that two periods of 38 and 16 seconds during which she was completely silent showed that she had been asleep, and therefore unable to consent.
Commander Pelletier rejected the prosecution’s arguments. He said the video was the key in providing “evidence of agreement to the sexual activity,” not just in the initial affirmations but in “the movements, words and noises” made by the complainant during the sexual act. Commander Pelletier accepted Private Vu’s statement to police that he only noticed she had possibly passed out when people entered the room.
Before the Vu decision, the Supreme Court had sided with the complainant and against the defence in 42 sexual-offence cases in a row, stretching back to February, 2018, when it last ruled in favour of the defence. In total, it overturned acquittals from appeal courts in 17 cases over the five years. In 16 of those cases, it substituted convictions for acquittals. (It ordered a new trial in the 17th.)