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Dalhousie University Schulich School of Law professor Elaine Craig

SCC could face thorny military justice system case about capacity to consent to sex while impaired

Friday, March 17, 2023 @ 10:32 AM | By Cristin Schmitz

Last Updated: Friday, March 17, 2023 @ 11:00 AM

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The Supreme Court of Canada may soon review a court martial’s sexual assault acquittal of a military member, who stated that, in line with his understanding of his training on “consent” by the Canadian Armed Forces’ (CAF) now-defunct “Operation Honour,” he filmed himself engaged in oral-genital contact with a highly impaired fellow military member, in order to protect himself from criminal liability by recording her affirmative consent.

Private D.T. Vu’s cell phone video recording — made without the knowledge or consent of the woman he told police was likely passed out by the time fellow military members discovered them and pulled him off her bed — was key evidence at the 2021 court martial presided over by the military judge who acquitted Vu, Cmdr. Martin Pelletier: R v. Vu 2021 CM 4012.

Military Judge Pelletier, after painstakingly reviewing the video and other evidence in the case, including text messages and statements from the accused, complainant and other witnesses, held that the military prosecutor failed to prove beyond a reasonable doubt that the complainant (who witnesses testified was unable to walk or sit unaided) was incapable of consenting, due to advanced intoxication. The prosecution also failed to prove she did not subjectively consent, the trial judge ruled.

The two young military members met and became friendly a week or so before attending a party, where they and others took part in a “drinking game.” The complainant testified her last memory of the night was talking to Vu at the party and then waking up at 3 the next morning.

According to a summary of the evidence in a Feb. 27 Court Martial Appeal Court of Canada (CMACC) judgment dismissing the Crown’s appeal from the sexual assault acquittal, the complainant became increasingly intoxicated and started blacking out at the party. When she fell off her chair and could not stay on it, two of the others dragged her to her room (because she had trouble moving her legs) after taking her to the bathroom where she also needed help. Vu followed behind. The two witnesses put her into her bed, clothed, covered her with a blanket and left the room. They testified she was not moving, and her eyes were closed. Before they left her room, Vu expressed concern to them about being left alone with her as he remembered his Operation Honour training,  

Vu told military police in a voluntary statement afterward that within minutes of being left alone with her, she asked him to perform oral sex. He said that in light of his Operation Honour training, he wanted to record her consent to “save [himself] if it would come back and hit hard.” He video-recorded the events — including removing her pants (contradicting his statement to military police that she helped him to do that). He told the police that when he began oral contact, it seemed like she was not fully awake.

Vu was acquitted at court martial of voyeurism and non-consensual distribution of intimate images, which the Crown did not appeal. The military judge found that Vu purposely angled his phone so that it recorded the upper part of his face and the movement of his head, as well as the pair’s verbal exchanges and sounds, but did not show any nudity or the complainant’s image, except momentary flashes incapable of identifying her. (Military Judge Pelletier held Vu was not guilty of voyeurism as he did not make a “visual recording of a person” within the meaning of s. 162(1) of the Criminal Code, i.e. “there is no visual image to be protected here.”)

Private Vu’s acquittal on a charge of sexual assault (post-charge he was promoted to corporal) was upheld 2-1 by a panel comprising CMACC Chief Justice Richard Bell and Justice Gary Trotter, a criminal law expert from the Court of Appeal for Ontario, who co-wrote the majority decision, and Federal Court Justice Glennys McVeigh, a former federal prosecutor, whose vigorous dissent gives military prosecutors the automatic right to appeal to the Supreme Court of Canada: R. v. Vu, 2023 CMAC 2.

“We are considering appealing,” confirmed Maj. Patrice Germain, appellate counsel with the CAF’s Canadian Military Prosecution Service in Ottawa. Vu’s co-counsel, Cmdr. Mark Letourneau and Maj. Francesca Ferguson of the CAF’s Directorate of Defence Counsel Services in Gatineau, Que., declined comment.

Should the CMACC’s decision be appealed, the Supreme Court of Canada would have the opportunity to revisit the vexed issue of intoxicated complainants’ capacity to consent — a thorny topic the top court most recently grappled with in R. v. G.F., 2021 SCC 20.

“This decision raises very important issues that require Supreme Court of Canada clarification, particularly when the complainant is intoxicated,” advised University of Calgary criminal law professor Lisa Silver. “It may highlight legal gaps in sexual assault law,” she said. “It also raises issues of whether expert evidence is needed to assist in determining levels of intoxication and capacity.”

Elaine Craig, Dalhousie University

Elaine Craig, Dalhousie University

Dalhousie University criminal law professor Elaine Craig, the author of a groundbreaking 2020 study, “An Examination of How the Canadian Military’s Legal System Responds to Sexual Assault," told Law360 Canada a takeaway from the Vu case is “it would seem that women who consume too much alcohol continue to bear nearly all of a set of risks that should be borne by the men who choose to perform sexual acts on profoundly, severely intoxicated women.”

Craig’s study found that the conviction rate for sexual assault and lesser sex-related offences by courts martial is dramatically lower, and the acquittal rate higher, than in Canada’s civilian criminal courts, with even serious sexual assaults receiving fines and reprimands.

Remarked Craig, “I agree with the dissenting judge, Justice McVeigh, that the military judge failed to conduct a cumulative assessment of all of the evidence as a whole when determining whether the complainant had capacity. He did not in a cumulative way take into account, in his assessment of whether she had an operating mind capable of consenting, the fact that the video he placed so much weight on didn’t show her face, or that the accused himself admitted that she was a 10 out of 10 in terms of her level of intoxication [at the party] and had to be ‘dragged’ to her room by others because she was too drunk to get there herself or remain at the party, or that the accused repeatedly admitted that she had passed [out] while the sexual activity was occurring.”

In rejecting the Crown’s appeal of the sexual assault acquittal, Chief Justice Bell and Justice Trotter said that the prosecution’s position amounted to an assertion that the court martial’s acquittal was unreasonable. Yet, as a matter of law, appeal courts can’t set aside acquittals on that basis, as it would be incompatible with the presumption of innocence and with the burden of proof that rests on the Crown, the majority said.

Peter Sankoff, University of Alberta

Peter Sankoff, University of Alberta

“It’s the Crown’s burden to prove beyond a reasonable doubt that the complainant lacked capacity, did not consent, or both,” University of Alberta law professor Peter Sankoff told Law360 Canada. “We can’t remove that ability from trial judges because we don’t like the decisions they are making. The Supreme Court has stated repeatedly that we need to defer to factual findings of this sort and presume the trial judge applied the law correctly. If this is appealed, it will give the court the chance to remind everyone of the fact that this deference extends to acquittals too.”

In Sankoff’s view, the majority more correctly than the minority applied the Supreme Court’s approach to deference. “The trial judge was thorough, and indicated a concern about the complainant’s evidence in light of the videotape,” he said. “Dealing with this question of consent/capacity is always going to be difficult. The trial judge revealed a sensitivity to these issues. The fact that he had a doubt is not reason for reversal.”

Sankoff added that “it is always going to be difficult to find the line between capacity and lack of capacity to consent in situations where alcohol is involved. But as long as the law remains that a person who is intoxicated short of incapacity can consent to sexual activity, we have to leave it to trial judges and juries to decide if the absence of capacity has been proven beyond a reasonable doubt, especially where there is evidence to show that actual consent might have been present given the words and actions of the complainant.”

Both the CMACC’s majority and the court martial judge below agreed that the accused’s conduct in “having sexual activity with a person who one barely knows and is drunk to the point of having difficulties to walk” was “reprehensible” and “fundamentally inappropriate.” However, both agreed it was not for the court “to pass moral judgment. The unwavering focus must be on whether a crime had been committed.”

In her dissent, Justice McVeigh identified several legal errors in the court martial judge’s reasoning. She held that the military judge’s reasoning on the complainant’s capacity to consent with an operating mind failed to cumulatively consider the circumstantial evidence as well as the direct evidence, including treating the video evidence as if it were definitive of consent and an operating mind, and failing to consider in their totality the accused’s voluntary statements to police, and their implications, indicating at least 12 times that the complainant was unconscious or asleep toward the end of the impugned incident and that the accused was aware of the complainant’s high level of intoxication which he estimated was 8-9 out of 10 during the impugned sexual contact. Justice McVeigh noted the Supreme Court has ruled that consent requires an ongoing conscious state of mind while the sexual activity is occurring, and moreover s. 273.1(2)(a.1) of the Code stipulates that unconsciousness is an instance of incapacity to consent.  

Justice McVeigh also highlighted the military judge’s “insistence on corroboration” for the extremity of the complainant’s intoxication — despite his finding that the complainant was credible and the evidence of multiple witnesses, including the accused, that she showed signs of severe alcohol-induced intoxication. The military judge’s reasoning on that point was not only legally wrong (with which the CMACC's majority agreed) but it also “resurrects myth-based reasoning about sexual assault victims as dishonest and untrustworthy, and entrenches stereotypes about complainants.”

In arguing for a new trial, Justice McVeigh contended that the military judge erred in his analysis of both mens rea and actus reus in the case, including that Vu lacked mens rea because he did not look up from his position between the complainant’s legs and thus could not have known she had passed out at a certain point and thus was not consenting. Vu “was so wary of [the complainant’s] degree of intoxication that he took a video of her alleged consent,” Justice McVeigh said. He “was aware of and alert to the risk and nevertheless proceeded in the face of it,” she reasoned. “That is the very definition of recklessness.”

Commenting on Vu’s interpretation of the CAF’s Operation Honour, Craig said that the fact that Operation Honour, “which was of course, on the military’s own account, an abysmal failure, is still being invoked in military sexual assault cases by CAF members accused of sexually assaulting profoundly intoxicated comrades, speaks volumes about how inappropriate the concept of ‘honour’ is in this context.”

Craig’s study found that from when the CAF launched Operation Honour in 2015 to 2018 (it was cancelled in 2021) — with the aim of eradicating sexual misconduct within military ranks — only one or two military members had been convicted of sexually assaulting a female member of the military, with Craig writing that “decisions of military judges in some cases suggest a critical failure to recognize the Canadian military’s culture of hostility to women documented in the Deschamps Report.”

Janine Benedet, University of British Columbia

Janine Benedet, University of British Columbia

Vu “is a deeply disturbing case,” remarked University of British Columbia law professor Janine Benedet, who researches sexual violence against women, and barriers to successful criminal justice system responses to sexual assault for women and girls. “I worry that this decision reinforces the idea that anything short of unconsciousness is not going to be enough to prove incapacity, which has been a persistent problem in the case law,” she said. “If we are going to set the bar for capacity this low, we need a clear statement from an appellate court that if you know a person is highly intoxicated and at the edge of passing out, the only reasonable step is to refrain from sexual activity, and certainly from any sexual activity that prevents you from monitoring their continued capacity.”

Queried Benedet, “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.”

“The obvious problem,” she elaborated, “is the judges at both levels who call this conduct ‘reprehensible’ but not criminal. Consensual sexual activity — which includes the other person having the capacity to consent — is not reprehensible. The fact that they think there is some zone where you can film yourself having sex with someone who is literally falling down drunk and has to be physically carried to her bed, and have it be wrong — but not criminal — is a view of sexual assault law that is seriously out of date. The judges get to distance themselves from the activity by condemning it, but with no consequences for the perpetrator.”

Benedet said intoxication does not always render a person incapable of consent. “But the evidence in this case from every single witness was that the complainant was very, very intoxicated — falling off her chair, unable to get back to her room, slurring her speech, saying nonsensical things, and that bystanders were concerned about her health and safety.”

She suggested the court martial judge misunderstood the import of Justice Andromache Karakatsanis’s statement for the Supreme Court’s majority in R. v. G.F., that “the ultimate question of capacity must remain rooted in the subjective nature of consent. The question is not whether the complainant remembered the assault, retained her motor skills, or was able to walk or talk. The question is whether the complainant understood the sexual activity in question and that she could refuse to participate.”

Remarked Benedet, G.F. “is not suggesting that someone who is literally falling down drunk and barely conscious is able to consent. I would consider that an error of law.”

In his analysis of the actus reus of sexual assault, Military Judge Pelletier said the complainant showed the indicia of impairment, but concluded that “in light of her actions during the sexual activity, the evidence of impairment is insufficient to convince me beyond reasonable doubt that she did not have the degree of understanding necessary to appreciate all the conditions of subjective consent.”

He referred to the four-and-a-half minute recording which started with Vu saying, before any sexual contact took place, “You want me to eat you?”

Over a period of 50 seconds before Vu proceeded to do so, the complainant agreed eight times, the military judge found. Vu’s requests are almost all immediately followed by “yeah” from the complainant, including (fourth request): “Is that what you want?” “Yeah!” “With your permission?” “Yeah! Just eat me … Come … " the judgment states.

Following that exchange, the complainant mumbles mostly indiscernible words, although the words “pussy” and “right now” are discernible, the judge said. Vu said in the video at 39 seconds “You want me to eat you? That is your permission?” The immediate reply from the complainant, “yeah”. His last question, “You’re give me fully permission right now (sic)?”, was followed by the reply “yeah” and a few words, including “pussy” twice.

Referring to the video which shows the accused’s head between the complainant’s legs, but not her face, the military judge said “I remain in doubt even considering my observations of the final moments of the activity when people barge into the room, Private Vu is being pulled away and a blanket is thrown on [the complainant’s exposed genitals] without generating what I can positively find to be a voluntary movement on her part, including of her knee, visible on the screen for a moment. The apparent absence of movement suggests that she may have fallen unconscious at the time, especially since Private Vu told police that he noticed her eyes were closed,” the judge said. “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.”

Commented Justice McVeigh, “the military judge’s failure to consider all of the evidence as a whole led him to speculate improperly about alternative theories. The only reasonable inference, based on the totality of the cumulative evidence before the military judge, was that [the complainant] was unable to provide subjective consent due to severe intoxication and at the end of the video was unconscious or asleep. Essentially, these errors might have reasonably had a material bearing on the verdict.”

Reasoned Justice McVeigh, “it was not open to the military judge to disregard the accused’s own evidence to speculate about alternative theories such as [the complainant] feigning sleep and not actually being unconscious. Recall that, when the other people returned to the room to see what was happening, [her] genitals were completely exposed to a room of people who she had met mere days before while awaiting military training. She had to be covered up ... [and] does not stir at all during the ensuing commotion, nor when Pte. Vu goes to grab his phone from the bedside table. Two witnesses and Pte. Vu attested to the fact that [she] was either unconscious or asleep. This is not a logical inference made from an absence of evidence in light of human experience and common sense.”

Chief Justice Bell and Justice Trotter said they agreed with Justice McVeigh that the military judge “improperly engaged in speculation about whether [the complainant] feigned sleep when other military personnel barged into her room and removed Pte Vu from the bed. This proposition was not put to [her] during her testimony. ... [T]his theory makes little sense in view of the fact that she was found in a prone position, with her genitals exposed. If she were attempting to avoid embarrassment, one would not have expected the complainant to feign sleep while exposed in this manner.”

The majority also endorsed Justice McVeigh’s “concern regarding the Military Judge’s musings about [the complainant’s] level of alcohol consumption that night, and the lack of adverse effects (i.e., lack of a hangover, vomiting, etc.) the following day.”

“These were non-issues,” the majority reasoned. “All of the evidence, including Pte. Vu’s statement, supported the conclusion that [the complainant] was seriously intoxicated. Relatedly, we share [Justice McVeigh’s] criticism of the Military Judge’s comments about the lack of evidence that might corroborate [the complainant’s] level of intoxication, speculating about what expert toxicology evidence might have contributed to the case. While expert evidence is sometimes adduced in cases like this, it is not a pre-condition to a successful prosecution. Complainants are capable of self-authenticating their own level of intoxication.”

The majority held that the impugned comments by the court martial judge were not, however, consequential as, assuming they could be characterized as legal errors, they could not reasonably be thought to have had a material impact on the acquittal. “In our view, these observations by the Military Judge did not undermine his fundamental finding that the Crown had failed to prove a critical feature of the actus reus of sexual assault beyond a reasonable doubt,” i.e. lack of subjective consent, the majority ruled.

“The decision was reached after a thorough review of the evidence," Chief Justice Bell and Justice Trotter wrote. “The Military Judge’s reasoning is clearly explained and free from stereotypical thinking about complainants in sexual assault cases.”

Military Judge Pelletier said in his judgment that his conclusion that there was no vitiation of consent in the case “may come as a shock to those who find that the conduct of Private Vu was utterly unacceptable in the circumstances, regardless of what consent may have been obtained.”

“There is no doubt that the conduct complained of in this case is reprehensible, both in engaging in sexual activity with a drunk colleague and in filming oneself engaged in that activity,” he said.

However, quoting from R. v. Percy, 2018 NSPC 57, Military Judge Pelletier observed “mere consumption of alcohol, impairment or even severe intoxication is insufficient to vitiate consent. An intoxicated person whose inhibitions are reduced may choose to have sex with people or in circumstances they would not choose if they were sober. They may have significant and painful remorse or regret when they become sober. That does not mean their consent at the time was not valid. Having sex with a severely intoxicated person may be unethical or immoral but it is not always illegal.”

Justice McVeigh noted that the question of whether Vu’s recording of the complainant constituted a fraud vitiating consent pursuant to s. 265(3)(c) of the Criminal Code was not raised at trial or on appeal, but that “sexual assault law involving surreptitious video recordings appears to be an evolving area of the law” which has yet to be ruled on by the Supreme Court of Canada.

If you have any information, story ideas or news tips for Law360 Canada, please contact Cristin Schmitz at or call 613-820-2794.