René LeBlanc

The Crown appealed a military judge's decision to grant a stay of proceedings for an alleged abuse of process in a sexual assault trial.

The military judge had ruled that evidence of the complainant's past sexual relations with the accused was admissible and strongly suggested it be introduced via an agreed statement of facts.

When the prosecution declined to seek a statement from the complainant for that purpose, the military judge found this constituted a refusal to accept his decision and an abuse of process, ending the proceedings.

The Court Martial Appeal Court allowed the appeal, finding the military judge misapprehended the prosecution's position, which was merely a refusal to follow a suggested procedure, not a refusal to comply with an admissibility ruling.

The military judge also erred in the scope of his trial management powers and in his assessment of the appropriate remedy.

A new trial was ordered.

The appellant, a military police officer and provost marshal, was convicted at a Standing Court Martial of two counts of conduct to the prejudice of good order and discipline under section 129 of the National Defence Act.

The charges arose from incidents during a deployment where he simulated a sexual act directed at a female colleague and made inappropriate sexual comments about women in the presence of junior female members.

On appeal, he argued the military judge misapplied the W.(D.) framework for assessing credibility and erred in finding his conduct prejudiced good order and discipline.

The Court Martial Appeal Court dismissed the appeal, finding the military judge correctly applied the law, properly assessed the evidence, and reasonably concluded that the appellant's actions undermined discipline given his senior rank and role.