R. v. Thibeault, 2015 CM 3004

COURT MARTIAL Citation: R. v. Thibeault, 2015 CM 3004 Date: 20150220 Docket: 201407 Standing Court Martial Asticou Centre Courtroom Gatineau, Quebec, Canada Between: Her Majesty the Queen - and - Captain J.R.N.J. Thibeault, Accused Before: Lieutenant-Colonel L.-V. d'Auteuil, M.J. Restriction on publication: By court order made under

section 179 of the National Defence Act and

section 486.4 of the Criminal Code , information that could disclose the identity of the person described in this judgment as the complainant shall not be published in any document or broadcast or transmitted in any way. REASONS FOR FINDING (Orally) [ 1 ] Captain Thibeault is charged with one service offence punishable under

section 130 of the National Defence Act for sexual assault contrary to

section 271 of the Criminal Code . [ 2 ] This offence would have allegedly taken place on 4 February 2012 in room A-249 of building P-198 at Canadian Forces Borden, province of Ontario, and would have involved a female classmate. [ 3 ] The prosecution’s case relies heavily on the testimony of the complainant. Also, some pictures of the room were introduced as evidence and a second witness was heard by the Court on some facts that occurred after the alleged incident.

[ 4 ] Captain Thibeault presented a defence and decided to testify on his behalf. He also introduced a series of text messages, a copy of an invoice for movie rental dated 4 February 2012 and, with the consent of the prosecutor who explicitly renounced the opportunity to cross-examine, the written transcript of the testimony of two witnesses provided at the previous trial, which are Captain Cyr and Major Greening. [ 5 ] Captain Thibeault and the complainant where on the same trade course that started during the summer of 2011 and that would end in August 2012.

For the duration of the course, they were both separately assigned an individual room in building P-198 at Canadian Forces Base Borden. The complainant’s room was A-249. [ 6 ] During the first part of the course that took place in 2011, both the accused and complainant got acquainted with each other. Both being smokers, they would find themselves together often and progressively, through various activities, it became a friendly relationship.

Both individuals were also involved in a personal relationship with other people. [ 7 ] However, in the month of January 2012, this friendly relationship went beyond friendship, and it became a more intimate relation involving some sexual activity between them. This situation created some kind of emotional dilemma between them and their respective loved one. [ 8 ] They had a serious discussion and came to the conclusion that they must cease their intimate relation, while trying to maintain the friendship.

Also, they tried to keep things as normal on the course in order to avoid any suspicion among their classmates about their respective real feelings for each other. [ 9 ] It is in that context that, on the evening of 4 February 2012, Captain Thibeault went to the complainant’s room with a DVD movie that he had rented earlier. Pursuant to the complainant, he went to her room where she agreed to watch the movie with him. According to the accused, it was something to which they had agreed previously in the day.

The accused rented this movie from Bandito Video Superstores in Angus, a town close to the base. [ 10 ] According to the complainant, Captain Thibeault entered her room, put the movie in the DVD player and they both sat in her bed with their backs leaning on the headboard, side by side, separated by a bag of candies he had brought, and they watched the movie which was in French. From the accused’s perspective, he entered the room, the complainant put the movie in the laptop, they laid on the bed, head on a pillow, shoulder to shoulder, holding hands, and they watched the movie.

They both told the court that, once in the bed, the complainant was on the right side and the accused was on the left side. [ 11 ] From that point on, both described differently how things unfolded and resulted in an attempt by the accused to have anal sex with the complainant. Essentially, she described forced sexual intercourse while the accused provided an account of a consensual sexual relation that suddenly stopped. [ 12 ] The complainant told the court that she was wearing a t-shirt and sweat pants, while the accused wore a t-shirt and track pants.

He also had a coat and a vest that he placed on a chair previously. [ 13 ] After twenty to thirty minutes of watching the movie, Captain Thibeault reached over and started rubbing her crotch over her pants. It lasted for a couple of minutes and she found it pleasurable.

She was aroused, but she did not want him to continue because of her guilt feelings of cheating on her boyfriend. [ 14 ] She told him that they should not be doing this and rolled away onto her right side, facing the night stand, making the accused unable to reach her and stopping what he was doing. [ 15 ] Then, Captain Thibeault would have gotten on top of her, straddling her while she was on her stomach. She did not know where he was exactly but she said that each of his legs were on each side of her body.

He kissed the back of her neck and tried to kiss her face but he was unable to do it because she turned her face away. She felt pinned down a bit. [ 16 ] She told the court that she started to say “no” to the accused as he was kissing her on the back of her neck. She then felt his

hand on the back of her neck with some pressure and felt she could not really move. He would have pulled her pants and her underwear down, below her buttocks. Her hands were on the side. [ 17 ] She felt that he put his finger in her anus for few minutes. While he was fingering her, she repeatedly said “no”. She told the court that she buried her head and cried. She was shocked and pretty upset. She felt that she was unable to do much. [ 18 ] She still felt some pressure on her neck and she felt the penis of the accused being inserted in her anus because it was bigger than his finger and penetrated deeper.

She felt the head of his penis and it was more painful. It lasted a minute or two and she continued to say “no”. [ 19 ] She suddenly moved her hips and told him to get off of her. She felt the pressure on her neck let up. She slid out on the left side of the bed and fell on her knees. She felt that his penis came out when she moved to slide out of the bed. [ 20 ] From beginning to end, the episode lasted about five to six minutes. She repeated about ten to fifteen times the word “no” to him.

She started softly saying it, then progressively said it louder. [ 21 ] She told the court that she ran to the washroom and closed the door. She splashed some water on her face and tried to calm down. She went back into the room and saw the accused sitting at the foot of the bed. She said that he was hunched over, looked sad and he was texting on his phone. [ 22 ] She went to the desk. She took his vest and the DVD cover and threw them at him, asking him to leave. She said that the accused mentioned that he wanted to talk. She opened the door and closed it. He said that they should talk about it.

She agreed and they exited together and went to the smoking area. They had a cigarette. She told the court that he said that he stopped when she said “no”. She replied that he should have gotten her consent for what had just happened. He apologized. He offered her a cigarette. She threw it out and went back to her room. [ 23 ] She texted and finally called a friend who was living in the Permanent Married Quarters (PMQs) on the base. He came and picked her up. She told him why she was upset and crying, without identifying the other person involved. She watched some movies and had vodka.

About two hours later, he drove her back and she went back to her room where she tried to sleep. [ 24 ] She tried to forget about this incident because she did not want to deal with it. Her mood was up and down. However, she would generally act as normal in the presence of others, including the accused.

There was a lot less text messaging with the accused. [ 25 ] Further to an incident during a class trip in Ottawa where she had punched somebody in a bar, she made the decision to go see her chain of command and talk about what happened on 4 February with the accused, in addition to discussing the physical altercation she had had. She was removed from the course a couple of weeks after telling the authorities.

She underwent therapy for anger management and sleep trouble, and her medication was changed. [ 26 ] According to Captain Thibeault, when the relationship changed in January 2012, it became a back and forth relationship between friendship and something more, from an emotional and sexual perspective. He confirmed that a serious conversation occurred with the complainant to leave it as a friendly relationship, but because of their actions on both sides, they could not leave it as they had planned.

As an example, without attributing any specific responsibility to her, he talked about the invitation he got from the complainant the day prior to the alleged incident where she invited him in her bed, while she had stayed for some time in his bed earlier without doing anything improper. [ 27 ] He also testified about a text message conversation on 2 February where they discussed continuing on a friendship basis and afterwards they met up to smoke outside, which ended up in intimacy with the complainant back in her room. [ 28 ] Captain Thibeault told the court that on the evening of 4 February 2012, when he entered the complainant’s room she was dressed in her bra and sweat pants.

He was wearing jeans, a t-shirt, a vest with a Maple Leaf logo on it and a coat. He put his coat and his vest on a chair. He inferred from the fact that he remembered the complainant taking the DVD out of her laptop, that she is the one who

put it in to begin with. [ 29 ] He said that while they were in the bed watching the movie, he asked her if she wanted to give him a massage. She answered “yes”. He removed his t-shirt and she got on top of him to give him a massage on the back and the shoulders. She stopped after a moment and they came back to their initial position on the bed. [ 30 ] He started to kiss her on the neck. She seemed to appreciate it. He touched her vagina over the top of her clothes, lasting for about three minutes. She responded positively. He offered to give her a massage, to which she answered “sure”.

She turned over on her stomach. He sat on top of her with his legs bent on each side of her body and gave her a massage for about five minutes. She removed her bra during the massage. He kissed her shoulders and proceeded downwards, kissing her back. [ 31 ] He put his hands on her jogging pants. She told him that she was having her period. He replied to not worry and not to be embarrassed by that. She smiled and he pulled down her pants below her buttocks. [ 32 ] He kissed the cheeks of her buttocks for a while.

He got himself out of the bed, stood at the end of the bed, and said not very seriously, to bring her “ass here”. She changed position, she was on both her hands and knees on the bed. He kneeled down and kissed her buttocks. He touched her vagina with his hand. He touched something else, which he discovered was the string of the tampon she was using for her period. [ 33 ] He applied saliva on her anus and touched it with his finger. He told her that they could try something else. She responded with a smile. He inserted his finger into her anus and kissed her buttocks at the same time.

This lasted about two minutes. He tried gently using his finger. He stood up and removed his jeans and boxers. She looked at him and he asked her to lay down on the bed. She laid down and he laid next to her. He put saliva in his hand and inserted his finger again into her anus. This lasted about a minute; she did not move away nor say anything indicating to him that she was uncomfortable. [ 34 ] He removed his finger from her anus. He put saliva on his hand to put on his penis. He held his penis in his hand. She looked at him and moved her right leg.

He put his right leg between both her legs and put his penis against her anus, applying some force. [ 35 ] Her facial expression changed. Her face became tense and tight; she said “no”. He stopped immediately. He was struck. He did not have time to insert his penis into her anus. He asked her if she was okay. She got out of the bed. She said that she did not want to cheat on her boyfriend again and she went to the bathroom. At that moment, he did not quite understand what was going on. He put on his boxers, t-shirt and jeans. [ 36 ] The complainant came out of the bathroom.

He asked her again if she was okay, to which she responded that they should not have sex again. From his perspective, it seemed to him that she was confused. He invited her for a smoke, to which she agreed. He felt bad for her. [ 37 ] They went out the building for a smoke. It was cloudy outside and they talked about the weather. After a moment of silence, he asked her again if she was okay. She said that she did not like that he had put his penis in her ass. He replied that he “thought it was okay”. They finished their cigarette and it started to rain.

They moved to a place with cover where they were joined by another candidate. That person left later. They wished each other good night and went to their respective rooms. [ 38 ] He saw her later that night. She came to him to get orange juice to mix it with some alcohol. He reminded her of the fact that he stopped when she said “no”. [ 39 ] His testimony is to the effect that throughout this sexual intercourse, he got signs that things were okay. The way and the moments she smiled, the way she moved her body and her legs during their interaction were positive signs to him about what was happening.

He told the court that some days before the incident, during a discussion with her, he brought up the fact that he would like to try anal sex with her, to which he said that she responded with a smile, indicating to him that it might be possible one day. [ 40 ] He told the court that further to that incident, he fell back away a bit from her. He confirmed that he received a text message

from her where she asked him, after a session on harassment, if he got that because it was criminal. [ 41 ] He said that he lost interest in maintaining a relationship with her and became minimal in his answers and interactions with her. He felt that he was not dealing with somebody who was one hundred per cent stable. He confirmed that there was a lot less text messaging between the two of them. [ 42 ] However, he told the court that they maintained some kind of friendship on the course and tried to keep things as normal in front of other classmates.

He said that he got text messages from her once in a while after the incident and met up with her again.

He gave as examples the snow day where he was snowboarding and she stayed with the group and him throughout that day, the keys for the classroom that she came to pick up and where they ended up having a smoke together, the text message exchange they had regarding a mistaken text message he sent to her instead of to his girlfriend, and another text message inviting him to have a cigarette outside a pub where they were with some other classmates. [ 43 ] An investigation took place and a charge was laid against the accused. He was convicted in October 2012.

He appealed the verdict and, on 24 February 2014, the Court Martial Appeal Court ordered a new trial. [ 44 ] Before this court provides its legal analysis, it is appropriate to deal with the presumption of innocence and the standard of proof beyond a reasonable doubt, a standard that is inextricably intertwined with the principle fundamental to all Code of Service Discipline and criminal trials.

And these principles, of course, are well known to counsel, but other people in this courtroom may well be less familiar with them. [ 45 ] The first and most important principle of law applicable to every Code of Service Discipline and criminal case is the presumption of innocence. Captain Thibeault enters the proceedings presumed to be innocent, and the presumption of innocence remains throughout the case unless the prosecution, on the evidence put before the Court, satisfies it beyond a reasonable doubt that he is guilty. [ 46 ] Two rules flow from the presumption of innocence.

One is that the prosecution bears the burden of proving guilt. The other is that guilt must be proved beyond a reasonable doubt. These rules are linked with the presumption of innocence to ensure that no innocent person is convicted. [ 47 ] The burden of proof rests with the prosecution and never shifts. There is no burden on Captain Thibeault to prove that he is innocent. He does not have to prove anything. [ 48 ] Now what does the expression “beyond a reasonable doubt” mean? A reasonable doubt is not an imaginary or frivolous doubt.

It is not based on sympathy for or prejudice against anyone involved in the proceedings. Rather, it is based on reason and common sense. It is a doubt that arises logically from the evidence or from an absence of evidence. [ 49 ] It is virtually impossible to prove anything to an absolute certainty, and the prosecution is not required to do so. Such a standard would be impossibly high. However, the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt. The Court must not find Captain Thibeault guilty unless it is sure he is guilty.

Even if the Court believes that he is probably guilty or likely guilty, that is not sufficient. In those circumstances, the Court must give the benefit of the doubt to Captain Thibeault and find him not guilty because the prosecution has failed to satisfy the Court of his guilt beyond a reasonable doubt. [ 50 ] The important point for the Court is that the requirement of proof beyond a reasonable doubt applies to each of those essential elements. It does not apply to individual items of evidence.

The Court must decide, looking at the evidence as a whole, whether the prosecution has proved Captain Thibeault’s guilt beyond a reasonable doubt. [ 51 ] Reasonable doubt applies to the issue of credibility. On any given point, the court may believe a witness, disbelieve a witness, or not be able to decide. The Court need not fully believe or disbelieve one witness or a group of witnesses. If the Court has a reasonable doubt about Captain Thibeault’s guilt arising from the credibility of the witnesses, then it must find him not guilty. [ 52 ] The Court has heard Captain Thibeault testify.

When a person charged with an offence testifies, the court must assess that

evidence as it would assess the testimony of any other witness, keeping in mind what the court mentioned previously about thecredibility of witnesses. The court may accept all, part, or none of Captain Thibeault’s evidence. [53] It is one of those cases where the approach on the assessment of credibility and reliability expressed by the Supreme Court ofCanada in R. v.

W. (D.), (SCC), [1991] 1 S.C.R. 742, must be applied, because Captain Thibeault testified. [54] This test was enunciated mainly to avoid for the trier of facts to proceed by establishing which evidence it believes, the oneadduced by the accused or the one presented by the prosecution. However, it is also clear that the Supreme Court of Canada reiteratedmany times that this formulation does not need to be followed word for word as some sort of incantation. [55] The pitfall that this Court must avoid is to be in a situation as appearing, or in reality, to choose between two versions in itsanalysis.

As established by the Supreme Court of Canada in its decision of R. v. Vuradin, 2013 SCC 38, at paragraph 21: The paramount question in a criminal case is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt aboutthe guilt of the accused: W.(D.), at p. 758. The order in which a trial judge makes credibility findings of witnesses is inconsequential aslong as the principle of reasonable doubt remains the central consideration. A verdict of guilt must not be based on a choice between theaccused’s evidence and the Crown’s evidence: R. v.

C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 6-8. However, trial judges are notrequired to explain in detail the process they followed to reach a verdict: see R. v.

Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499, at para.29. [56] Of course, if the court believes the testimony of Captain Thibeault that he did not commit any offence charged, the court mustfind him not guilty of it. [57] However, even if the court does not believe the testimony of Captain Thibeault, if it leaves it with a reasonable doubt about anessential element of the offence charged, the court must find him not guilty of that offence. [58] Even if the testimony of Captain Thibeault does not raise a reasonable doubt about an essential element of the offencecharged, if after considering all the evidence the Court is not satisfied beyond a reasonable doubt of his guilt, it must acquit. [59] About the evidence, it is important to say that the court must consider only the one presented in the courtroom.

Evidence isthe testimony of witnesses and things entered as exhibits, including pictures and documents. It may also consist of admissions. Theevidence includes what each witness says in response to questions asked. Only the answers are evidence. The questions are not evidenceunless the witness agrees that what is asked is correct. [60] Captain Thibeault is charged with sexual assault. Paragraph 271(

a) of the Criminal Code reads, in part, as follows: 271. Everyone who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding 10 years and, if the complainant is under the ageof 16 years, to a minimum punishment of imprisonment for a term of one year . . . [61] In R. v. Chase, (SCC), [1987] 2 S.C.R. 293, at page 302, Judge McIntyre provided the definition of a sexualassault: Sexual assault is an assault within any one of the

definitions of that concept in s. 244(1) [now section 265(1)] of the Criminal Codewhich is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated.

[62] Paragraph 265(1)(

a) of the Criminal Code reads, in part, as follows: 265.

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; [63] In R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330, it was established that a conviction for sexual assaultrequires proof beyond reasonable doubt of two basic elements; that the accused committed the actus reus, and that he had the necessarymens rea. [64] The actus reus of assault is unwanted sexual touching and is established by the proof of three elements: touching; the sexualnature of the contact; and the absence of consent. [65] Consent involves the complainant’s state of mind.

Was it with the voluntary agreement of the complainant that the accuseddid what he did in the way in which he did it and when he did it? In other words, did the complainant want the accused to do what hedid? A voluntary agreement is one made by a person, who is free to agree or disagree, of his or her own free will. It involves knowledgeof what is going to happen and voluntary agreement to do it or let it be done. [66] Just because the complainant did not resist or put up a fight does not mean that she consented to what the accused did.

Consentrequires knowledge on the complainant’s part of what it is going to happen and a decision by him, without the influence of force, threats,fear, fraud or abuse of authority, to let it occur. [67] The mens rea is the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by wordsor actions, from the person being touched and it contains two elements: intention to touch and knowing of, or being reckless of orwilfully blind to a lack of consent on the part of the person touched. [68] Then, the prosecution had to prove the following essential elements beyond a reasonable doubt: the identity of the accused,the date and place as alleged in the particulars of the charge on the charge sheet. [69] The prosecution also had to prove the following additional elements: a. the fact that Captain Thibeault used force directly or indirectly against the complainant; b. the fact that he used intentionally the force against the complainant; c. the fact that the complainant did not consent to the use of force; d. that Captain Thibeault knew, or was reckless of or wilfully blind to, a lack of consent on the part of the complainant; and e. the fact that the contacts made by him on the complainant were of a sexual nature. [70] As I mentioned to counsel before they proceed with their respective final address to the court, many of the essential elementsof the charges are not in dispute in this trial, considering the testimony delivered by Captain Thibeault.

Essentially, he admitted being theone involved in the sexual anal relation he had with the complainant, on the date and the place as alleged in the charge sheet. He clearlyadmitted having used force directly against the complainant and that he did that intentionally. He clearly stated that those contacts hemade with the complainant were of a sexual nature.

[ 71 ] Then, there is no other conclusion for the court that, having regard to the evidence as a whole, that the prosecution has proved beyond a reasonable doubt all those essential elements of the offence. [ 72 ] Through his testimony, Captain Thibeault is raising two issues to be decided by the court: a. Did the prosecution prove beyond a reasonable doubt that the complainant did not consent to the use of force intentionally applied by Captain Thibeault for having sexual anal intercourse with her? b.

Did the prosecution prove beyond a reasonable doubt that Captain Thibeault knew, or was reckless of or wilfully blind to, a lack of consent on the part of the complainant while having sexual anal intercourse with the complainant? [ 73 ] In order to decide, the court must first make a determination about the credibility and reliability of the testimony provided by all witnesses before the court in this matter. [ 74 ] I would agree with defence counsel when he said that Captain Thibeault testified in a calm and straightforward manner.

He provided clear answers, asked for clarification when he found it necessary to answer properly, did not hesitate to correct counsel, in a respectful manner, when they put to him assertions that were not reflecting his testimony, did not hesitate to recognize logic inferences coming from his own account of his story. He appeared to the court as delivering a candid, honest and frank testimony of what happened, on 4 February 2012, in the room of the complainant.

He did not try to guess on anything or on what the complainant would have thought. [ 75 ] The description he made of the sexual intercourse he had on that day with the complainant was logic and coherent. His own evidence, i.e. text messages and invoice, supported clearly the context in which he described the event had taken place and, more specifically, the type of relationship he was involved in with the complainant. [ 76 ] I disagree with the prosecution about the fact that the accused tailored his evidence to respect Canadian law requirements on sexual assault.

The account made by Captain Thibeault did appear as something normal, not with specific pause as claimed by the prosecutor. The only pause the accused referred to was the one when he stood up at the end of the bed. Even the complainant, in her own version of the event, specifically mentioned the fact that there was no pause in what was happening. The way the complainant acted, during that sexual anal relation, by smiling and moving in specific ways, as described by the accused, should be taken as cues for consent.

Things were going one after the other, as they both said, without having clear stops between any stages of that sexual intercourse. For sure, the accused knew that consent by the complainant was an issue in this trial, but, for this sole reason, the court cannot infer that he said that and put things in a way to the Court solely for being believed by the Court.

There is no other factor that would make the prosecutor’s affirmation valid and of concern for the Court. [ 77 ] The Court does not see the fact that details, such as how they were dressed or on which device they watched the movie, as being elements for the court to disbelieve the testimony of the accused.

Essentially, three years after the incident has not helped respective witnesses’ memories be more accurate on those details and clearly the accused and the complainant may have different recollection on those issues without making their account of their respective story more or less believable. [ 78 ] The context and the dynamic of the relationship with the complainant were clearly explained by Captain Thibeault and he never denied that they were both placed in an emotional dilemma for which they could not find a solution in accordance with their own feelings. [ 79 ] The pain felt by the complainant when experiencing the penis of the accused in her anus, as she confirmed it in her own testimony, seemed to have been the trigger of a strong and emotional thought about what she wanted really to do and appeared as putting an end to something that was going beyond their own control.

The fact that the accused mentioned his intent to withdraw from that relationship after that incident and that he felt as though he was walking on egg shells with her, did fit with the context and the dynamic as it turned out. [ 80 ] The accused’s testimony was honest, reasonable and consistent with itself and the Court did not find any reason to disbelieve

it.

His testimony is credible and reliable. [ 81 ] Then, it is the conclusion of the Court that, considering the evidence as a whole, the testimony of Captain Thibeault raised a reasonable doubt about the fact that the complainant did not consent to the use of force intentionally applied by the accused and that the latter knew, or was reckless of or wilfully blind to, a lack of consent on the part of the complainant while having sexual anal intercourse with the complainant. [ 82 ] Considering that the prosecution has not proved beyond a reasonable doubt all the essential elements of the offence of sexual assault concerning Captain Thibeault, then the Court must acquit him of that offence. [ 83 ] But, there is more.

The Court must also say that it came to the conclusion that the witnesses brought by the prosecution must also be believed. [ 84 ] Clearly, Corporal Burton testified in a clear, honest and straightforward manner. He did not have any interest in the outcome of this trial and stated clearly what he saw and what he did. He told the Court that the complainant was in a kind of emotional turmoil and the Court does believe him. [ 85 ] The complainant testified also in a calm and straightforward manner. Her account of her version of the event was consistent with itself.

She did confirm, in some ways, the context of her relationship, as described by the accused, before and after the incident. It is true that she seemed to reduce the importance of the ambiguous signals and inconsistent conduct she had with the accused and to mitigate her own problems she had on the course with this very incident, but those things did not make her account of her story less credible or reliable. [ 86 ] The Court clearly felt through her testimony that she still has some disrespect for herself for what happened with the accused that night.

It appears to the court that she also put some responsibility on the accused for what happened. [ 87 ] Clearly, at some point she did not consent to that type of sexual intercourse.

Was it at the very beginning of it as she claimed, or at some point later where the accused stopped immediately, as he told the Court? [ 88 ] This is where the Court, concluding that both testimony must be believed, is left with a doubt concerning her consent to have force applied to her and the state of mind of the accused regarding her, and the Court shall conclude that being unable to disbelieve any of the two persons involved, and considering the evidence as a whole, the prosecution has not proved beyond a reasonable doubt all the essential elements of the offence of sexual assault and shall acquit Captain Thibeault, accordingly.

FOR THESE REASONS, THE COURT: [ 89 ] FINDS Captain Thibeault not guilty of sexual assault, being the first and only charge on the charge sheet. Counsel: The Director of Military Prosecutions as represented by Major J.E. Carrier. Mr T. Brown, Greenspon, Brown and Associates, Counsel for Captain J.R.N.J. Thibeault.