R. v. Vu

The Chief Justice — The respondent was acquitted of sexual assault before the Court Martial (2021 CM 4012). The Crown appealed, arguing that the military judge failed to consider all of the evidence cumulatively and assessed the evidence on the wrong legal principles. A majority of the Court Martial Appeal Court dismissed the Crown’s appeal (2023 CMAC 2, 488 D.L.R. (4th) 631). Justice McVeigh, in dissent, would have allowed the appeal and ordered a new trial.

The Crown appeals to this Court as of right.

A majority of the Court is of the view that the appeal should be dismissed, substantially for the reasons of the majority of the Court Martial Appeal Court. The military judge’s assessment of the evidence was thorough and cumulative. Reading the judgment as a whole, the military judge did not adopt a piecemeal or narrow approach to the evidence. In addition, we are not persuaded that the military judge applied the wrong legal principles. While we agree with all of the justices of the Court Martial Appeal Court that the military judge engaged in some improper speculation, we share the majority’s view that these comments did not undermine the military judge’s fundamental findings.

For her part, Justice O’Bonsawin would allow the appeal for the reasons of Justice McVeigh, at paras. 39‑90 and 119‑26 (CanLII). Therefore, the appeal is dismissed.