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Crown appeal from military sexual assault acquittal dismissed by majority.
The Crown appealed an acquittal of sexual assault entered by a military judge, arguing that the military judge failed to consider all of the evidence cumulatively and assessed the evidence on the wrong legal principles.
The Court Martial Appeal Court majority dismissed the Crown's appeal and upheld the acquittal.
The Supreme Court of Canada, by majority, dismissed the appeal substantially for the reasons of the Court Martial Appeal Court majority, finding that the military judge's assessment of the evidence was thorough and cumulative, and that no wrong legal principles were applied.
Although some improper speculation was noted, it did not undermine the military judge's fundamental findings.
O'Bonsawin J. dissented and would have allowed the appeal.
No evidence supported reasonable steps to ascertain consent; appeal dismissed.
The Court dismissed the appeal and affirmed the order for a new trial in a sexual assault prosecution.
It held there was no evidentiary basis to find that the accused took reasonable steps to ascertain consent under s. 273.2(b) of the Criminal Code, so the defence of honest but mistaken belief in consent should not have been left with the panel.
