Glennys McVeigh

The Crown appealed the acquittal of the respondent, who had been charged with sexual assault.

The Crown argued the military judge erred in concluding that the complainant, who was highly intoxicated, was capable of consenting to the sexual activity.

The majority of the Court Martial Appeal Court dismissed the appeal, finding no legal error in the military judge's assessment of the evidence and his conclusion that the Crown failed to prove lack of capacity or lack of consent beyond a reasonable doubt.

The dissenting judge would have allowed the appeal and ordered a new trial, finding the military judge failed to conduct a proper cumulative assessment of the evidence.

The appellant, a military captain, appealed his convictions and sentence for sexual assault, sexual harassment, and ill treatment of subordinates arising from incidents at a unit Christmas party.

The Court Martial Appeal Court allowed the appeal in part, quashing the convictions for sexual assault and ill treatment of subordinates and ordering a new trial on those charges.

The Court found the trial judge's reasons for those convictions were insufficient and the verdicts unreasonable because the judge failed to resolve significant contradictions in the testimony of three witnesses regarding the incidents.

However, the Court upheld the conviction for sexual harassment, finding it was supported by the evidence, and affirmed the sentence of a reduction in rank.