R. v. Clancy, 2019 CM 2033

COURT MARTIAL Citation: R. v. Clancy, 2019 CM 2033 Date : 20191127 Docket: 201910 Standing Court Martial Her Majesty’s Canadian Ship York Toronto, Ontario, Canada Between: Her Majesty the Queen - and - Lieutenant(

N) R.M. Clancy, Accused Before: Commander S.M. Sukstorf, M.J. Restriction on publication: By Court order, pursuant to

section 179 of the National Defence Act , information that could disclose the identity of the person described during these proceedings as the complainant shall not be published in any document or broadcast or transmitted in any way. REASONS FOR FINDING (Orally) The case [ 1 ] Lieutenant(

N) Clancy is charged with three offences. Two charges relate to allegations contrary to

section 129 of the National Defence Act ( NDA ), that is to say, conduct to the prejudice of good order and discipline and one charge relates to alleged conduct contrary to

section 93 of the NDA , for behaving in a disgraceful manner. [ 2 ] The particulars of the charges read as follows:

“First Charge

Section 93 N.D.A. (Alternative to Second Charge) Second Charge

Section 129 N.D.A. (Alternative to First Charge) BEHAVED IN A DISGRACEFUL MANNER Particulars: In that he, on or about 28 July 2017, at or near the Canadian Forces Base Esquimalt, Esquimalt, British Columbia, kissed J.P., his student, without her consent. CONDUCT TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE Particulars : In that he, on or about 28 July 2017, at or near the Canadian Forces Base Esquimalt, Esquimalt, British Columbia, kissed J.P., his student, without her consent. Third Charge

Section 129 N.D.A. CONDUCT TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE In that he, between 28 July 2017 and 25 August 2017, at or near the Canadian Forces Base Esquimalt, Esquimalt, British Columbia, did evaluate the academic performance of J.P., while he had had a personal relationship with her.” [ 3 ] In reaching the Court’s decision, I reviewed and summarized the facts emerging from the evidence and made findings on the credibility of the witnesses. I instructed myself on the applicable law and applied the law to the facts, conducting my analysis before I came to a determination on each of the charges. Evidence [ 4 ] The following evidence was adduced at the court martial: (

a) In-court testimony of the prosecution’s witnesses: i. Acting Sub-Lieutenant C. MacLennan; ii. Sub-Lieutenant N. Hennerbichler; iii. Sub-Lieutenant J.P. Gagnon; and iv. Sub-Lieutenant J.P. (complainant); (

b) In-court testimony of Lieutenant(

N) R. M. Clancy (accused) testifying in his own defence; (

c) In-court testimony of the following defence counsel witnesses:

i. Sub-Lieutenant A. Ferguson; and ii. Acting Sub-Lieutenant D. Nguyen; (

d) Exhibit 1: Convening Order; (

e) Exhibit 2: Charge Sheet; (

f) Exhibit 3: Code of Values and Ethics; (

g) Exhibit 4: DAOD 5019-5, Sexual Misconduct and Sexual Disorders; (

h) Exhibit 5: DAOD 5019-1, Personal Relationships and Fraternization; (

i) Exhibit 6: Copy of text messages; (

j) Exhibit 7: Course Report; (

k) Exhibit 8: MARS PROGRESSION ACADEMIC

SUMMARY SHEET; (

l) PP1-1: Notice of application – Publication ban (

m) The Court also took judicial notice of the facts and matters covered by

section 15 of the Military Rules of Evidence ( MRE ) as well as Operation HONOUR. Facts [ 5 ] From 1 May 2017 until 25 August 2017, Lieutenant(

N) Clancy was the Course Training Officer (CTO) on the Naval Warfare, Phase 3 course, also referred to as maritime surface and sub-surface (MARS III) training. The course took place at Naval Officer Training Centre (NOTC) Venture, the Naval Fleet School (Pacific) in Esquimalt, British Columbia. The academic portion of the course consisted of eight weeks of classroom instruction, which covered Officer of the Watch (OOW) core skills, radar theory, ship handling, engineering, stability, collision regulations, relative velocity, tides and astronomic, radar navigation and meteorology.

In the practical phase of training, students were introduced to the navigation and bridge simulator (NABS), spending two weeks developing OOW core skills such as fixing, contact avoidance, block reporting and bridge routine. Two weeks were then spent at sea on an Orca- class vessel further developing and evaluating OOW core skills. For the final three weeks of training, students returned to the NABS for the OOW manoeuvres developmental and assessment phase. [ 6 ] The consistent evidence before the Court was that Lieutenant(

N) Clancy had been a fair instructor who treated all candidates well. There was no evidence given by anyone from the divisional system within NOTC Venture to describe what his exact role as a CTO entailed; however, witnesses who were candidates on the course described what he actually did. Lieutenant(

N) Clancy taught and evaluated the candidates on the core skills in the academic phase and then oversaw the administration and coordination of the remaining training elements of their MARS III training, which involved being a liaison between the candidates and the other instructors and evaluators. The Court heard there were a number of different personnel, both military and civilian who instructed and evaluated the candidates throughout the various phases of the course.

[ 7 ] The evidence suggested that Lieutenant(

N) Clancy fulfilled an important function ensuring candidates who needed assistance received it, and his efforts focused primarily on looking out for the best interests of the candidates undergoing training. [ 8 ] Working from the performance assessment sheets completed by all the different instructors and a matrix of scores compiled from completed performance checks, Lieutenant(

N) Clancy drafted all the candidates course reports and drafted comments which were then forwarded to the divisional officer, Lieutenant Commander Wetmore, for final signature. [ 9 ] The complainant, J.P., was a candidate on the same MARS III course where the accused was the CTO. The accused drafted and signed off J.P.’s course report on 24 August 2017 as the reporting officer, and Lieutenant Commander Wetmore signed his portion on 25 August 2017.

J.P. signed her course report in the presence of the accused on 25 August 2017. [ 10 ] The alleged event set out in the particulars of charges 1 and 2 took place after a training mess dinner on 28 July 2017. [ 11 ] Acting Sub-Lieutenant MacLennan was a reservist and candidate on the same MARS III course and she described J.P. as a friend. She has since completed her component transfer to the regular force. She described that the afternoon before the mess dinner, she initiated a text exchange with Lieutenant(

N) Clancy where they discussed a course outing planned for the next day. In the text exchange, the accused indicated that he could give a ride to approximately four people. When asked why she had Lieutenant(

N) Clancy’s personal cell number, Acting Sub-Lieutenant MacLennan explained that he had given it to all the students in the event that any of them needed to get a hold of him. [ 12 ] All the Venture candidates and instructors involved in the various levels of naval warfare training attended the mess dinner. In their respective testimony, all witnesses were relatively consistent in saying that the mess dinner was a standard mess dinner and lasted approximately three to three and a half hours. Lieutenant(

N) Clancy was the vice-president of the mess committee (VPMC) for the Starboard table. [ 13 ] After the mess dinner, the candidates and Lieutenant(

N) Clancy engaged in various activities at either the gunroom which is described as an extension of the wardroom, located at NOTC Venture at Work Point or they went downtown, but at some point very late on 28 July 2017 or in the early morning hours of 29 July 2017, several of the witnesses, including both Lieutenant(

N) Clancy and J.P., found themselves at an after party in the common room of the Welland room, which is in the Kingsmill building, which was the building where all the candidates resided while attending their respective courses. The gunroom was connected by a pathway to the adjacent Kingsmill accommodation building. [ 14 ] Acting Sub-Lieutenant MacLennan also attended the mess dinner, but did not attend the after party at the Welland room. [ 15 ] The alleged conduct, particularized in charges 1 and 2 allegedly unfolded in the Welland room, during the after party in the early morning hours of 29 July 2017.

The witnesses present during the dancing and the alleged kiss testified that the lights were on and there was clear visibility and an unobstructed view of both the accused and J.P. dancing together. [ 16 ] Sub-Lieutenant Gagnon testified that after being downtown, he returned to the Welland room between midnight and one a.m. He described the atmosphere as pleasant with music playing, alcohol being consumed and people talking and drinking. He estimated that he stayed in the Welland room for about three and a half hours (which would indicate he departed around 0330 or 0430 hours).

He explained that as the party progressed, there was more alcohol being consumed, the music got louder and there was dancing. [ 17 ] Sub-Lieutenant Hennerbichler testified that after the mess dinner, she went to the gunroom and then later to the Welland room. She described the mood in the Welland room as a fun atmosphere with music and dancing. She testified that she drank with her friends, engaged in a bit of dancing and chatting into the evening. [ 18 ] The accused testified that when the gunroom closed at 0100 hrs both he and a colleague tended to a sick candidate and then went to the Welland room.

He stated that after arriving in the Welland room, he didn’t immediately notice J.P. until she joined him while he chatted with a colleague. He admitted to supplying alcohol for the after party.

[ 19 ] J.P. testified that the day of the mess dinner, they had just returned from the sea portion of their training and were all very tired. She stated she did not drink before the mess dinner, but during it, she consumed about five glasses of wine. She described her level of intoxication as “a little tipsy”. Later, while at the after party in the Welland room, she testified she drank some beer, Pernod and had a bit of white wine. She told the court that she brought the Pernod for herself and the wine was provided by Lieutenant(

N) Clancy. She estimated that she consumed about eight glasses of various types of alcohol. She described her state of intoxication in the Welland room as “tipsy”. [ 20 ] When asked to describe his own level of intoxication, Sub-Lieutenant Gagnon explained that by the time he returned to the Kingsmill, he had slowed down his drinking, stating that he might have had one beer.

He described himself as being clear-headed and having all his wits about him. [ 21 ] Sub-Lieutenant Gagnon explained that the accused and J.P. danced to a bit of “everything”, but what struck him was the salsa- style dancing which involved a great deal of hip swaying with their hands moving about. He explained that the accused and J.P. danced with their bodies pressed against each other with no distance between them. He described their interaction as mutual with them both rubbing up against each other.

He estimated that J.P. and the accused danced together for at least an hour; however, under cross- examination, he estimated it could have been for an hour and a half. [ 22 ] Sub-Lieutenant Hennerbichler told the Court that at one point, the accused and J.P.’s dancing together was the only thing happening in the room so she was just watching them. However, Sub-Lieutenant Hennerbichler also admitted that she did not look at them the entire time because she was not comfortable with the way they were dancing. Under cross-examination, she described them as moving at the same tempo, swinging back and forth.

When asked why she was not comfortable with the way they were both dancing, she explained that even though she has been dating her boyfriend for four years, they do not dance like that. [ 23 ] The accused testified to dancing exclusively with J.P., describing that at first they danced facing each other and then, as time wore on, they danced more intimately, with him standing behind her, with his right hand on her right hip and his left hand on her left hip, with her hand holding his. He explained that as they danced more intimately, they were swaying their hips together and grinding.

Under cross-examination, J.P. confirmed that the nature of the way they were dancing, with her bum pressing against the front of the accused. She confirmed that it could have been perceived by the accused as grinding. The accused estimated that they danced for about an hour, while J.P estimated that they danced for about 30 minutes. [ 24 ] What happens during the dancing is where the evidence diverges. [ 25 ] J.P. testified that while dancing, Lieutenant(

N) Clancy kissed her on the neck three or four times without her consent. She also testified that she blacked out shortly after that and woke up the next morning in the spare bedroom beside the accused’s bedroom. The conduct before the Court is only the alleged non-consensual kisses. [ 26 ] The accused admitted to dancing with J.P., but testified to having no recollection of ever kissing her while they were dancing.

Under cross-examination, he left open the possibility that while dancing close to her, with her positioned in front of him, both facing the same direction, that in speaking with her, he could have touched her ear or neck. [ 27 ] Although neither Sub-Lieutenant Gagnon nor Sub-Lieutenant Hennerbichler witnessed the alleged kisses, J.P. told the military police (MP) during her interview, that they had. During cross-examination, she testified that what she meant was that Sub-Lieutenant Hennerbichler and Sub-Lieutenant Gagnon were both present and she just assumed that they saw it.

Either way, J.P. was insistent that both Sub-Lieutenant Hennerbichler and Sub-Lieutenant Gagnon were both present at the time of the alleged event. [ 28 ] Both Sub-Lieutenants Gagnon and Hennerbichler testified that when they retired from the party, only J.P. and Lieutenant(

N) Clancy remained and they were slow dancing and talking. Sub-Lieutenant Gagnon recounted that when they left, J.P. had her back to Lieutenant(

N) Clancy and they were swaying back and forth with his hands on her hips and no distance between them. [ 29 ] When Sub-Lieutenant Hennerbichler was asked to describe both J.P.’s and Lieutenant(

N) Clancy’s demeanour, she said they were both calm. She described J.P. as being intoxicated, but she could not describe to what level. She knew that J.P. had been drinking. [ 30 ] Acting Sub-Lieutenant MacLennan explained that the morning after the mess dinner, which she said was a Saturday,

Lieutenant(

N) Clancy texted her to ask if they were still on for the outing and then he texted her saying he was “so hungover”, but stillgame. Acting Sub-Lieutenant MacLellan responded that they were meeting downstairs at “3ish”. Afterwards, Lieutenant(

N) Clancyasked her what room J.P. was in as he thought he had her shoes, to which Acting Sub-Lieutenant Maclellan replied, “Omg lol 407 Ithink”. Lieutenant(

N) Clancy then asked for J.P.’s number which she provided.

In explaining what the text acronyms meant, she defined“OMG” as “oh my God!” and “LOL” as “laugh[ing] out loud”. [31] Acting Sub-Lieutenant MacLennan testified that when she received the text, she was a bit taken aback as it was unusual to gettexts from an instructor asking for a candidate’s room number so she was a bit suspicious at first, but then assumed it was not bad andshe gave him the info. [32] In their respective testimonies, both J.P. and the accused admitted that several weeks after the mess dinner where the allegedkisses occurred, but before the end of the course, they both spent time together where sexual activity occurred. [33] Acting Sub-Lieutenant MacLennan testified that near the end of the summer, she heard serious allegations regarding theconduct of the accused towards J.P. and the day before their graduation parade, she advised Lieutenant-Commander Wetmore, theirdivisional officer of the allegations.

When asked why she delayed in reporting the alleged misconduct, she stated that she did notoriginally know what had happened and heard some details from J.P., but when she found out the rest of the story, it bothered herbecause she knew that they were all still being assessed. [34] When Acting Sub-Lieutenant MacLennan was asked how she felt knowing that Lieutenant(

N) Clancy was evaluating both herand J.P., she replied that it was not an issue for herself, and for J.P., she could not say. She also testified that she did not have time tothink about the situation during the next week as they had “a lot going on” as it was a stressful time for them. She explained that, inretrospect, a candidate could fail very easily and if an instructor does not have your best interests at heart, it could be a problem. [35] She did explain that she was concerned about reporting it, but not necessarily for herself. Under cross-examination, ActingSub-Lieutenant MacLennan was asked whether she disliked Lieutenant(

N) Clancy, which she denied. Acting Sub-Lieutenant MacLennantestified that she was successful on her MARS III course and received decent marks. She does not recall seeing anything unfair withLieutenant(

N) Clancy’s marking, but she could only account for herself and not for others. She did not recall who assessed her on thesimulator, but confirmed that her course evaluation was signed by Lieutenant(

N) Clancy. [36] After the course, when she returned home to Saskatchewan, she provided a written statement which she forwarded toLieutenant-Commander Wetmore and Lieutenant(

N) Dignard. Presumption of innocence [37] That presumption of innocence remains throughout the court martial until such time as the prosecution has, on the evidenceput before the Court, satisfied the Court beyond a reasonable doubt that the accused is guilty on the charge before it. [38] So, what does the expression “beyond a reasonable doubt” mean? The term “beyond a reasonable doubt” is anchored in ourhistory and traditions of justice. It is so entrenched in our criminal law that some think it needs no explanation, but its meaning bearsrepeating (see R. v.

Lifchus, (SCC), [1997] 3 S.C.R. 320, paragraph 39): A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reasonand common sense. It is logically derived from the evidence or absence of evidence. [39] In essence, this means that even if I believe that Lieutenant(

N) Clancy is probably guilty or likely guilty, that is not sufficient.If the prosecution fails to satisfy me of his guilt beyond a reasonable doubt, I must give him the benefit of the doubt and acquit him. [40] On the other hand, it is virtually impossible to prove anything to an absolute certainty and the prosecution is not required to doso. Such a standard of proof is impossibly high. Therefore, in order to find Lieutenant(

N) Clancy guilty of the charges before the Court,the onus is on the prosecution to prove something less than an absolute certainty, but more than probable guilt for the charges set out in

the charge sheet ( see R. v. Starr , 2000 SCC 40 , [2000] 2 S.C.R. 144 , paragraph 242 ). The law

Section 93 of the NDA– disgraceful conduct [ 41 ] In order to prove the first charge before the Court, the prosecution is required to prove a number of elements of the offence. Based on the unrefuted evidence before the Court, the Court has no problem concluding that the elements of identity, time and place have been met. The elements left to be proven beyond a reasonable doubt for the charge are as follows: (

a) the conduct alleged in the particulars of the charge; (

b) the fact that the accused behaved in a cruel or disgraceful manner; and (

c) that the accused had the wrongful intent. [ 42 ] The first issue the court must decide is whether the particulars, as detailed in the charge, were proven beyond a reasonable doubt. With respect to the first charge, it is for the prosecution to prove beyond a reasonable doubt that the accused did kiss J.P., his student, without her consent and that that act was disgraceful. The finding on the charge depends not only on my assessment of the credibility of the witnesses and that the act particularized in the charge sheet has been proven beyond a reasonable doubt, but the prosecution must also prove that the actions of the accused were disgraceful within the context of

section 93 of the NDA . [ 43 ]

Section 93 of the NDA states: Every person who behaves in a cruel or disgraceful manner is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding five years or to less punishment. [ 44 ] A finding that the alleged conduct constituted disgraceful conduct requires an assessment of the accused’s conduct in its context. [ 45 ] As the Court Martial Appeal Court of Canada (CMAC) decided in R. v. Bannister , 2019 CMAC 2 , in most cases, the military judge’s expertise will usually be all that is needed to draw the necessary inferences.

At paragraph 16, the CMAC summarized some of the challenges faced in the past: [16] In R. v. Boyle , 2010 CMAC 8 , 417 N.R. 237 [ Boyle ], at paragraph 15 , the court suggested that the “[…] law of disgraceful conduct is not well-settled”. But the court did not go on to provide guidance as to what the appropriate test was to establish disgraceful conduct under s. 93 of the NDA . Since Boyle , military judges have been divided on whether accusations under s. 93 of the NDA should be assessed by applying a “harm-based test” or whether a reasonable person would find the conduct “shockingly unacceptable”.

In my view, it serves no useful purpose to parse words and create separate silos. Harm and unacceptability inform one another as to whether an incident is disgraceful. Context counts. [ 46 ] In Bannister , the CMAC confirmed that the determination as to whether the actions of the accused were disgraceful must be determined on an objective standard. In deciding whether the alleged proven conduct under

section 93 of the NDA is disgraceful, the military judge must consider the perspective of a reasonable person with military experience and general service knowledge, before becoming convinced beyond a reasonable doubt that the actions of the accused were disgraceful in the context of the military community.

[ 47 ] At paragraph 18, the CMAC stated, “A court martial must consider the context of the events in any incident, using its experience and general service knowledge to assess that incident.” At paragraph 22, the CMAC also clarified the following: [22] Ultimately, what is required is a contextual assessment of the incidents from the perspective of the Canadian Armed Forces [CAF] and the military community. In some incidents, the contextual assessment must also involve consideration as to the manner by which the incidents might be viewed in the non-military community.

As stated earlier, s. 93 criminalizes actions that would not constitute crimes in non-military settings. The severity of the offence is reflected in the maximum penalty, which is imprisonment for a term not exceeding five years. That punishment alone suggests that the offences targeted are ones that do more than raise a level of discomfort, insult, or somewhat offend those in the military community.

The term “shockingly unacceptable”, the use of which I have noted above, captures some incidents that could attract a charge under s. 93, but is only part of a contextual assessment. [ 48 ] In addition, the CMAC provided the following guidance: [25] In addition to “shockingly unacceptable”, there are many other descriptions that capture the essence of what is meant by the term disgraceful. In some cases, any reasonable person might consider an incident as being disgraceful, saying, “I know disgraceful when I see it”.

However, the application of an objective standard can never be that simple. [26] Whether incidents are disgraceful are not to be determined by considering harm as a separate issue. That is to say, there are not two separate silos, one for “shockingly unacceptable” conduct and one for consequences related to “harm or risk of harm”. Whether something is shockingly unacceptable can be informed by the nature of the harm. The more severe the harm or risk of harm, the more likely something is to bring disgrace to the CAF.

Conversely, the more shockingly unacceptable an incident is in light of CAF operational and military community norms, the less is required on the scale of harm assessment. [27] I offer an example as to how context can inform the inquiry. It is unacceptable, though not necessarily shockingly so, for a person to point an unloaded revolver at another and pull the trigger, even after it has been checked to ensure that it is not loaded. It would, however, be shockingly unacceptable to take that same revolver, insert one live round, point it and pull its trigger in a Russian roulette fashion.

That incident is not to be judged based on whether the gun fired. Rather, it is to be judged based on the risk of harm combined with the other surrounding circumstances. It can be either the “harm” or “the risk of harm” that informs the assessment as to whether the action was shockingly unacceptable/disgraceful in the context of a s. 93 of the NDA charge. [ 49 ] Persons in the military community are well equipped to evaluate the issue of disgraceful conduct in the context of the CAF without relying on outside experts.

It is the reasonable military member that is equipped to make an objective determination of whether or not the conduct is disgraceful in its context. An outside expert can do nothing more than opine on the ultimate issue. [ 50 ] As courts martial have found on a number of occasions and as counsel for the accused highlighted, the CMAC in R.v. Marsaw , CMAC-395 did find conduct akin to sexual assault to be disgraceful.

Section 129 of the NDA – conduct to the prejudice of good order and discipline [ 51 ] The second and third charges before the Court allege a violation of

section 129 of the NDA for conduct to the prejudice of good order and discipline. Based on the unrefuted evidence before the Court, the Court has no problem concluding that the elements of identity, time and place have been met. The elements left to be proven beyond a reasonable doubt for the charges are as follows: (

a) the conduct alleged in the charges; (

b) the fact that the conduct is prejudicial to the good order and discipline; and (

c) that the accused had the wrongful intent.

[ 52 ] The first issue for this Court to decide is whether the particulars as detailed in the charges were proven beyond a reasonable doubt. The onus is on the prosecution. [ 53 ] In order to prove that the alleged conduct is prejudicial to good order and discipline, there are a number of paths to do so.

Firstly, provided the prosecution could prove the accused had actual or deemed knowledge of Defence Administrative Orders and Directives (DAOD) 5019-1 on Personal Relationships and Fraternization, the prosecution will have proven prejudice, if the military judge is satisfied that the actions of the accused contravened the DAOD.

Actual or deemed knowledge must be proven beyond a reasonable doubt. [ 54 ] Secondly, the prosecution can prove the offence was committed if there is actual or direct evidence of prejudice to good order and discipline based on objective criteria of prejudice or likelihood of prejudice. [ 55 ] Thirdly, absent evidence of actual prejudice, the prosecution can prove prejudice by inference.

As part of an inferential reasoning process, a military judge must, based on his or her experience and general service knowledge, ask whether the proven conduct in this case can be considered conduct to the prejudice of good order and discipline. The military judge using his or her knowledge and experience must ask whether, on the totality of the evidence, in the circumstances of the case, prejudice to good order and discipline could be inferred from the facts as proven. This reasoning process would take into account all the contextual circumstances of the case.

Charges 1 and 2: alternative offences with respect to the alleged kiss? Issues [ 56 ] With respect to the first two charges before the Court, the critical issues for this court martial to decide are: (

a) is the Court convinced beyond a reasonable doubt that the conduct occurred as described in the particulars, i.e.: i. that the accused kissed J.P.; and ii. that J.P. did not consent to be kissed. (

b) did the accused have wrongful intent, i.e.: i. did the accused intend to kiss J.P? The physical contact must be intentional, as opposed to accidental. To decide whether the accused intentionally kissed her, the Court has to consider all the evidence, including anything said or done in the circumstances; and ii. did the accused know that J.P. did not consent or want to be kissed by him; (

c) was the proven conduct disgraceful or alternatively, prejudicial to good order and discipline? Position of the prosecution [ 57 ] The prosecution submitted that this case turns on credibility and that J.P.’s version of the events is the most reliable and accurate and is supported by the testimony of Sub-Lieutenant Gagnon and Sub-Lieutenant Hennerbichler. It is the prosecution’s position that J.P. is credible and should be believed. He further argued that even if the Court finds that J.P. consented, her consent is vitiated because the accused abused his position of trust or authority. In short, the essence of the prosecution’s argument is that this is a case

about Lieutenant(

N) Clancy’s abuse of authority and not about the lack of J.P.’s consent. He submitted that the defence of mistakenbelief in consent is not available to the accused because he did not take reasonable steps in the circumstances. Finally, the prosecutionargued that the alleged conduct amounted to disgraceful conduct or, alternatively, was at least prejudicial to good order and discipline. Position of the defence [58] The position of the defence is that the accused entered these proceedings presumed to be innocent and that Lieutenant(N)Clancy’s evidence is credible and should be believed.

He argued that this case is about the application of the R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742 test and that the prosecution has not proven the alleged conduct beyond a reasonable doubt. He furtherargued that proof beyond a reasonable doubt requires a high level of certainty and, based on the totality of the evidence, reasonable doubtis present.

Analysis [59] Having instructed myself on the presumption of innocence, reasonable doubt, the onus on the prosecution to prove their case,the required standard of proof and the essential elements of the offence, I now turn to address the legal principles. [60] In conducting my analysis, I proceeded first in assessing the evidence and credibility of all the witnesses and determiningwhether the particulars of the charge have been made out.

Credibility of witnesses with respect to charges 1 and 2 [61] Given that the event in question took place well over two years ago, it is not unusual that some of the evidence presentedbefore the Court is contradictory. Witnesses may have different recollections of the events and the Court has to determine what evidenceit finds credible and reliable. [62] With respect to the first two charges, the main prosecution witnesses, Sub-Lieutenant Gagnon, Sub-Lieutenant Hennerbichler,the complainant J.P., as well as the accused were all intoxicated to varying levels.

Intoxication in the context of this case affected theCourt’s assessment of the reliability of some of the evidence and the Court needed to assess the evidence from all the witnesses in orderto make a determination of what evidence as a whole should be believed. [63] In the context of Operation HONOUR, it is very important to be aware that, notwithstanding the chain of command’s and theinvestigators’ responsibility to believe a complainant when they report misconduct, a court martial must not fall into the trap of believingthat J.P.’s version of the facts is more truthful or has more merit than that of the accused.

To do this would, in effect, transfer the burdenof proof from the prosecution to the defence. This would be an error of law and would violate the accused’s presumption of innocence. [64] The role of the court martial is to determine whether or not the alleged offences have been proven beyond a reasonable doubtand in many cases the Court may never be able to determine what exactly happened. [65] Although much of the factual evidence of both the accused and J.P. can be reconciled, J.P.’s allegation that while dancing theaccused kissed her without her consent, is what is contested.

Although there were no witnesses to support this specific allegation, there isno legal impediment to a Court convicting an accused based on her uncorroborated evidence, provided the prosecution proves theparticulars and the elements of the offence to the evidentiary standard of proof beyond a reasonable doubt. [66] In a case like this where there is really only the testimony of the complainant that the Court is being asked to rely upon, I mustscrutinize the testimony of the complainant to determine whether, based on that evidence alone, the guilt of an accused has been provenbeyond a reasonable doubt.

It is important that all members understand that the court martial is the first time the prosecution’s evidenceis vigorously challenged and the accused puts forward his own defence.

[67] Vigorous cross-examination by the defence is not intended to harass or humiliate a complainant who comes forward. In fact,cross-examination is a necessary element of the criminal proceedings. If cross-examination by the defence is not allowed, the evidencewill not be fairly tested. The Court is always mindful of the dangers in permitting cross-examination from going too far and there arespecific evidentiary rules that protect against it; however, cross-examination is the main tool for challenging testimony. In R. v.

Osolin, (SCC), [1993] 4 S.C.R. 595, Cory J. reviewed the relevant authorities and, at page 663, explained why cross-examination plays such an important role in the adversarial process particularly, though of course not exclusively, in the context of acriminal trial: There can be no question of the importance of cross-examination. It is of essential importance in determining whether a witness iscredible. Even with the most honest witness cross-examination can provide the means to explore the frailties of the testimony. Forexample, it can demonstrate a witness’s weakness of sight or hearing.

It can establish that the existing weather conditions may havelimited the ability of a witness to observe, or that medication taken by the witness would have distorted vision or hearing. Its importancecannot be denied. It is the ultimate means of demonstrating truth and of testing veracity. Cross-examination must be permitted so that anaccused can make full answer and defence. The opportunity to cross-examine witnesses is fundamental to providing a fair trial to anaccused.

This is an old and well established principle that is closely linked to the presumption of innocence. [Citations omitted.] [68] The same is true for the testimony of the accused.

Although the accused is not required to take the stand in his own defence,when he does, he opens himself up to cross-examination by the prosecution to the same level of scrutiny that the complainant and otherwitnesses undergo. [69] This Court benefitted from the artful and very skilful cross-examination conducted by both the prosecution and the defence onboth the accused and the complainant, testing their evidence and revealing frailties and inconsistencies in their respective testimonies incomparison with the evidence as a whole.

With respect to the first two charges, the evidence surrounding the alleged kiss or kisses beforethe Court is what is contested. Assessing conflicting versions [70] A finding that a witness is credible does not require a judge to accept all the witness’s testimony without qualification.Further, a finding that a witness is credible does not mean that all his or her testimony is reliable and credibility is not co-extensive withproof (see R. v. Clark, 2012 CMAC 3, paragraph 47).

Accordingly, a court may accept or reject, some, none or all of the evidence of anywitness who testifies in the proceedings. [71] In fact, a witness may be completely sincere and speaking to the truth as that witness believes it to be, but he or she may havecompletely different perceptions of the same event. Witnesses will often see and hear things very differently. Discrepancies in testimonyor with other aspects of the evidence does not necessarily mean that the witness’s testimony should be discredited. Discrepancies intrivial matters may be completely irrelevant.

Due to a number of reasons including, but not limited to, intoxication, the passage of time,memory, their state of wakefulness or the lighting, the actual accuracy of the witness’s account may not be reliable. So, in effect, thetestimony of a credible or an honest witness may be nonetheless unreliable (see R. v.

Morrissey, (ON CA), [1995] 97CCC (3d) 193). [72] In assessing a case with competing versions of what happened, credibility is a central issue and in a case where the accusedhas testified, the Supreme Court of Canada (SCC) recommends that the issue be considered in three steps, commonly referred to as the“W.(D.) instruction” found in W.(D.), at page 758. (

a) first, if I believe the evidence of Lieutenant(

N) Clancy, I must acquit; (

b) second, if I do not believe the testimony of Lieutenant(

N) Clancy, but I am left in reasonable doubt by it, I must acquit; and (

c) third, even if I am left in doubt by the evidence of Lieutenant(

N) Clancy, I must ask myself whether, on the basis of theevidence, which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[73] In R. v. H. (C.W.), (BC CA), [1991] 68 C.C.C. (3d) 146 (B.C. C.A.), Wood J.A. suggested an addition tothe second part of the three-part test set out in W.(D.). At page 155 of H.(C.W.), His Lordship said, “If, after a careful consideration of allof the evidence, you are unable to decide whom to believe, you must acquit.” Credibility of J.P. [74] J.P. testified clearly with respect to the evidence that she could recount, and when she could not recall something she said so.She admitted to being tired on the evening and morning in question because they had just returned from the sea phase of the training.

Shealso admitted to consuming a significant amount of alcohol on the evening in question and to blacking out. [75] Under both direct and cross-examination, J.P. was calm, reasonable and not argumentative. She did not try to hide anything orembellish what happened to her. However, the Court found that in her testimony, she had a tendency to continually underplay her ownconduct, desires and subjective feelings that she may have honestly held and displayed at the time of the alleged events.

As an example,her testimony on how they were dancing was significantly underplayed in comparison to the evidence recounted by the prosecution’switnesses Sub-Lieutenant Gagnon and Sub-Lieutenant Hennerbichler.

When defence counsel confronted her on her own activeparticipation in the dancing by grinding against the accused, she was embarrassed, but without explaining why, she conceded that herconduct may have appeared that way. [76] At first, while under cross-examination, when she was specifically asked about details that were embarrassing and intimate,she responded overwhelmingly by saying that she did not recall. Her inability to recall was so persistent that the defence asked herspecifically if she had memory problems.

The Court accepted as a fact that her memory was fragmented, which is understandable basedon the combination of her level of tiredness and her alcohol consumption during the evening in question, as well as the time that haspassed since the alleged incident. [77] Notwithstanding her inability to recall most details that occurred both before and after the alleged kisses, J.P. unswervinglystated that the accused kissed her on the neck while they were dancing and that she did not consent to it.

J.P. testified that although sherecalls dancing and talking with the accused, she blacked out after the alleged kisses and has no memory of what followed until she wokeup the next morning. [78] She was challenged by defence on the inconsistency in her statement made to the MPs when she told them that Sub-Lieutenant Gagnon and Sub-Lieutenant Hennerbichler witnessed the kisses.

In response, she clarified that what she meant was that theywere both present at the time and she assumed they saw it. [79] However, defence questioned how her version could make sense when she testified that she did not remember events that theCourt determined unfolded both before and after the alleged timing of the kiss and when she blacked out. [80] As the cross-examination progressed, J.P. provided what the Court found to be a truthful and consistent recollection of whatunfolded in the weeks after the mess dinner in question.

Although she was hesitant to admit very intimate and embarrassing details, hereffort to be truthful confirmed her as a credible witness with respect to those details she could remember. [81] With respect to the post-offence conduct, the Court found J.P. clearly accounted for why she made certain decisions in herinteractions with the accused, but once again, the Court found that when compared to the evidence of the whole, in her testimony, sheunderplayed what the evidence suggests were her subjective feelings at the time. [82] When assessing an offence that is akin to a sexual assault but is particularized as either disgraceful conduct under

section 93of the NDA or conduct to the prejudice of good order and discipline under

section 129 of the NDA, the applicable provisions set out inthe

section 276 regime regarding sexual activity within the Criminal Code are not automatically triggered. However, in the case of R. v.Barton, 2017 ABCA 216, (reversing in part by the Supreme Court of Canada in R. v. Barton 2019 SCC 33), the Alberta Court of Appealconfirmed that

section 276 of the Criminal Code was not limited to instances in which accused was "charged" with listed offences. Itheld that it applied to proceedings conducted in relation to or in connection with a listed offence "in respect of" a sexual offence or whena sexual offence was underlying, predicate or lesser included offence such as under s. 231(5) of the Criminal Code and unlawful actmanslaughter. As such, in Barton, sexual activity that occurred the night before the deceased died was caught by

section 276 of the Codeas it was evidence of prior sexual conduct.

[83] More specific to the charges before the court, in Barton, the Alberta Court of Appeal ruled that if

section 276 does not applydirectly, the trial judge should nevertheless conduct a similar admissibility analysis under the common law evidentiary principles set outin R. v. Seaboyer, (SCC), [1991] 2 S.C.R. 577.

In Seaboyer, the Supreme Court of Canada articulated common lawprinciples governing the admissibility of sexual activity evidence. [84] The common law principles enunciated in Seaboyer provide critical guidance to military judges when assessing allegations ofsexual misconduct that are pursued under the NDA, rather than under the Criminal Code. [85] The following were suggested guidelines for the reception and use of sexual conduct evidence, not judicial legislation cast instone, but an attempt to describe the consequences of the application of the general rules of evidence governing relevance and thereception of evidence: 1.

On a trial for a sexual offence, evidence that the complainant has engaged in consensual sexual conduct on other occasions (includingpast sexual conduct with the accused) is not admissible solely to support the inference that the complainant is by reason of such conduct: (

a) more likely to have consented to the sexual conduct at issue in the trial; (

b) less worthy of belief as a witness. 2. Evidence of consensual sexual conduct on the part of the complainant may be admissible for purposes other than an inference relatingto the consent or credibility of the complainant, where it possesses probative value on an issue in the trial and where that probative valueis not substantially outweighed by the danger of unfair prejudice flowing from the evidence. By way of illustration only, and not by way of limitation, the following are examples of admissible evidence: (

A) Evidence of specific instances of sexual conduct tending to prove that a person other than the accused caused the physicalconsequences of the rape alleged by the prosecution; (

B) Evidence of sexual conduct tending to prove bias or motive to fabricate on the part of the complainant; (

C) Evidence of prior sexual conduct, known to the accused at the time of the act charged, tending to prove that the accused believed thatthe complainant was consenting to the act charged (without laying down absolute rules, normally one would expect some proximity intime between the conduct that is alleged to have given rise to an honest belief and the conduct charged); (

D) Evidence of prior sexual conduct which meets the requirements for the reception of similar act evidence, bearing in mind that suchevidence cannot be used illegitimately merely to show that the complainant consented or is an unreliable witness; (

E) Evidence tending to rebut proof introduced by the prosecution regarding the complainant's sexual conduct. 3. Before evidence of consensual sexual conduct on the part of the victim is received, it must be established on a voir dire (which may beheld in camera) by affidavit or the testimony of the accused or third parties, that the proposed use of the evidence of other sexual conductis legitimate. 4.

Where evidence that the complainant has engaged in sexual conduct on other occasions is admitted on a jury trial, the judge shouldwarn the jury against inferring from the evidence of the conduct itself, either that the complainant might have consented to the actalleged, or that the complainant is less worthy of credit.

[ 86 ] Applying the above principles, the Court would not normally have permitted evidence of additional sexual activity unrelated to the first two charges, however the prosecution chose to pursue a third charge within the same court martial where the court found that the evidence of a second incident of sexual activity was required to prove the allegation set out in the charge.

Hence, the probative value of the evidence of the second incident outweighed the prejudice as it was critical to the prosecution in proofing the third charge. [ 87 ] After discussion with both counsel, the court permitted the evidence of the second incident of sexual activity to be used for the sole evidentiary purpose of matters related to the third charge. The Court was particularly careful not to draw an inference that because of a second incident of sexual activity, that J.P. was more or less likely to consent to the first encounter or vice versa.

Further, the Court also permitted the use of the evidence of the second incident of sexual activity in the strict context of the court’s assessment of whether the accused abused his authority, thereby vitiating any consent of the complainant. In addition, there was some evidence that inadvertently slipped into evidence during the cross examination of J.P. with respect to the complainant’s use of Tinder, which the Court immediately stopped and instructed itself to disregard.

It was not considered as evidence in any of the charges. [ 88 ] In short, I found J.P. to be a very brave witness, but due to her level of intoxication at the time of the allegations set out in charges 1 and 2 and her inability to recall important details, compounded by the fact that she testified to blacking out and not remembering a significant amount of what unfolded, her evidence given on the first two charges did raise concern with respect to its reliability. [ 89 ] I want to be clear in saying that I felt J.P. was making every effort to be honest, but it was her fragmented memory regarding the event described in charges 1 and 2 and what appeared to be latent regret which coloured her testimony and required the Court to be particularly cautious in weighing her evidence.

Credibility of the accused [ 90 ] The accused testified in a straightforward, logical and coherent manner. He did not hesitate to admit facts that were embarrassing or which cast him in a negative light. [ 91 ] The prosecution submitted that he had a selective memory with respect to certain events that occurred on the evening in question, but conveniently had no memory of the alleged non-consensual kiss.

He argued that he was able to recount many details regarding a discussion about a book that J.P. was interested in, his discussions with his colleague and what specific things he did on the evening in question, but not the specific conduct before the Court. [ 92 ] The prosecution argued that his testimony revealed skilful exaggeration of details with partial suppression of the truth, being his personal acknowledgement of J.P.’s level of intoxication. He argued that the accused should have been aware of how tired J.P. was, as well as her level of intoxication.

The prosecution submitted that the accused was twice J.P.’s size and after having spent hours with her, drinking roughly drink for drink, he had to have been aware of her signs of impairment and if he was not, he was being wilfully blind. [ 93 ] Although the Court accepts the prosecution’s characterization of what the accused should have known in terms of J.P’s alcohol consumption, there is little evidence supporting when the alleged non-consensual kissing occurred.

We know that the accused did not arrive at the Welland room before 0100 hours and we know from J.P.’s testimony that she distinctly remembers that Sub- Lieutenant Gagnon and Sub-Lieutenant Hennerbichler being present when it occurred.

Using these facts to anchor the timeline, it would lead the Court to believe, based on the whole of the testimony, the alleged kissing would have occurred at some point between 0100 hours and 0430 hours which is within a three and a half hour span of drinking. [ 94 ] Overall, I found the accused to be relatively credible and honest in his assertions regarding the alleged non-consensual kiss, but despite this finding, I was not prepared to accept all his testimony.

I found that his responses to questions on the third charge regarding whether he was in a relationship to be evasive and calculated. [ 95 ] Given his years of service, both serving in the regular and reserve forces, his experience serving on international operations and his experience working in the naval divisional system, I found it troubling that he suggested he was not aware it was impermissible for an instructor to have clandestine sexual relations with his student.

[ 96 ] The accused testified that this was all new territory for him; however, with the greatest of respect, I do not find that assertion credible. Based on his testimony and his military experience recounted, the Court noted that he has served in the Navy during a time when women have always served alongside men. He would have been a MARS student at Venture while women attended his course and women would have been on other courses he attended, including the operational ships he sailed in. How would he have felt if he knew that his CTO was secretly sleeping with other candidates?

Simply by passing his command boards, which he testified to doing, his success confirms that he had an understanding of the command responsibilities expected of officers within the divisional system.

In essence, by denying any knowledge of the parameters required to be respected between instructors and students, it suggests that this type of expectation is absent within the Navy’s divisional system, which I find very difficult to believe and I can’t accept. [ 97 ] I appreciate that he is currently a reservist who retired from his full-time regular force service and may not have signed as having acknowledged, read and understood the various DAODs and Operation HONOUR; however, for reasons I will explain later, the expectations and duties of an officer working within a divisional system exist independent of those documents.

Credibility of Sub-Lieutenant Gagnon and Sub-Lieutenant Hennerbichler [ 98 ] I found both Sub-Lieutenant Gagnon and Sub-Lieutenant Hennerbichler to be both credible and reliable witnesses. [ 99 ] Neither of these witnesses displayed bias towards either side and they each testified in a straightforward manner providing meaningful evidence in corroborating important facts and observations of how J.P. and the accused were interacting around the time when the alleged incident occurred.

Neither Sub-Lieutenant Gagnon nor Sub-Lieutenant Hennerbichler were candidates on the same MARS III course, but they knew J.P. as she often spent time with members on their MARS IV course. Sub-Lieutenant Hennerbichler confirmed that in terms of a one-on-one friendship between the two of them, there was not really anything. [ 100 ] Sub-Lieutenant Gagnon and Sub-Lieutenant Hennerbichler were the last individuals present when J.P. and Lieutenant(

N) Clancy were still dancing in the early morning in question. Their individual testimonies were consistent in describing the type of dancing that the accused and J.P. were engaged in as well as their individual perceptions of the dancing. Based on their respective testimonies, J.P. and Lieutenant(

N) Clancy were intimately dancing, with Lieutenant(

N) Clancy snuggled behind J.P. with both their hips swaying and grinding. [ 101 ] Although the Court noted that there was some discrepancy in their evidence with respect to timings, whether they asked J.P. if she wanted to leave with them, as well as what J.P was wearing, these inconsistencies were understandable given the time frame that has elapsed as well as the fact that they would individually have different reasons to remember some details rather than others.

Credibility of defence witnesses – Sub-Lieutenant Ferguson and Acting Sub-Lieutenant Nguyen [ 102 ] The Court found the defence witnesses, Sub-Lieutenant Ferguson and Acting Sub-Lieutenant Nguyen were both credible and reliable with respect to the evidence that they could testify to. Although they were of limited assistance with respect to the alleged conduct before the Court, they testified in an unbiased manner and recounted details on the course that were helpful in assisting the Court in determining whether or not the accused may have abused his position of authority.

Overall analysis of charges 1 and 2 Did the prosecution prove the alleged kisses took place and the complainant’s absence of consent with respect to it? [ 103 ] The whole of the evidence before the Court was consistent with the fact that although J.P. and the accused knew each other from their instructor/candidate relationship on the MARS III course, until the evening of 28 July, 2017, J.P. and the accused were never romantically involved. [ 104 ] On the facts of this case, not only is the alleged conduct in the particulars disputed, but the absence of consent is a live issue.

Hence, the Court proceeded first to assess if the prosecution proved beyond a reasonable doubt that the alleged act occurred and, if so,whether the complainant, J.P. did not consent or, alternatively, whether such consent was vitiated and the accused was aware that she didnot consent and kissed her despite this. Did a kiss occur? [105] It is important to remember that the burden of proof remains on the prosecution, even in a case such as this one where thecomplainant does not recall very much. Lieutenant(

N) Clancy does not bear the burden of proving that the incident did not happen or thatJ.P. consented. [106] J.P. testified that the three or four kisses took place while the two were dancing, with the accused pressed against her back inwhat the Court would describe as a spoon-type position. J.P. told the Court that she did not push the accused away and let him do it asshe did not consider it too serious at the time. The Court was particularly careful not to conflate her lack of resistance with the fact thatthe incident did not occur.

J.P. testified that the kisses all occurred during one song and that both Sub-Lieutenants Gagnon andHennerbichler were both present. Although all the evidence suggests they were both present during the time the two were dancing, andthey both admitted to paying close attention to the two dancing, neither of them witnessed any kissing nor attempts by the accused to kissJ.P. [107] Lieutenant(

N) Clancy testified that he does not recall kissing J.P. on the neck while they were dancing. As suggested by theprosecution, and not dismissed as a possibility by the accused, it is also entirely possible that, in the position they were dancing, theaccused attempted to speak into her ear and that could also have been confused with a kiss. Absence of consent [108] Both parties made submissions on the issue of consent, which included references to the relevant portions of R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330 and the Criminal Code.

The charge before the Court is not a sexual assault, but rather theprimary charge is disgraceful conduct, where the particulars essentially set out an allegation akin to a sexual assault. [109] Consequently, the consent analysis for sexual assault set out in common law in the case of Ewanchuk is particularly instructive.The consideration of whether there was consent relates to the subjective intent of J.P. and whether she voluntarily and knowingly agreedto be kissed. Further, the prosecution submitted that if the court finds that J.P. consented, then it argued that such consent was vitiated. [110] In R. v.

Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, the majority reasons penned by McLachlin C.J. and Cromwell J.suggested courts engage in a two-step approach analysis in cases where consent may be an issue. The Court recommended at page 347,that the trial judge should: determine whether the evidence establishes that there was no ‘voluntary agreement of the complainant to engage in the sexual activity inquestion’ . . .

If the complainant consented, or her conduct raises a reasonable doubt about the lack of [consent], the second step is toconsider. . . whether there are any circumstances that may vitiate [her apparent consent]. [111] With respect to the first step described in the above approach set out in Hutchinson, the court must determine whether J.P.agreed to being kissed by the accused. Consent must be given at the time of the conduct, with respect to the specific act, and passivitydoes not equate to consent.

Further, consent cannot be assumed or implied. [112] In the first step of a consent analysis, the fundamental question to ask: did the complainant want the accused to do what he didat the time he did? In other words, did J.P. want to be kissed by the accused at the time they were dancing? It is as simple as that. [113] J.P. testified that she did not want the accused to kiss her. However, defence argued that her conduct before, during and after thedancing raises a reasonable doubt of the veracity of her assertion.

Hence, the Court’s determination of the absence of consent is a matterof credibility to be weighed in light of all the evidence, including any ambiguous conduct J.P. may have displayed.

[ 114 ] As stated at paragraph 29-30 in Ewanchuk : While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place.

If, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent. The complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant’s conduct is consistent with her claim of non-consent. The accused’s perception of the complainant’s state of mind is not relevant.

That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry. [My emphasis.] [ 115 ] In deciding whether or not there was an absence of consent, difficulties present themselves when a complainant, due to fatigue and excessive drinking of alcohol does not have a reliable memory of all the events in question. J.P. testified that she essentially blacked out after the alleged kisses.

The Court was particularly mindful of the fact that there is no typical manner upon which a victim will behave; however, in light of J.P.’s admitted memory lapses and the evidence of other witnesses, the court is required to assess whether the totality of J.P.’s conduct was consistent with her claim of non-consent. [ 116 ] In light of the doubt raised by the accused and other witnesses, in conducting my analysis regarding the likelihood that J.P. consented, I looked not just at J.P.’s evidence that she did not consent, I also examined the whole of the evidence from the other witnesses and all the surrounding circumstances, including any circumstantial evidence that could assist the Court. [ 117 ] Defence argued that consent need not be by spoken word, but rather he argued that actions speak louder than words and that the unrebutted evidence was that while dancing, she was pressing back on the accused’s groin, grinding back and forth against him and that it was reasonable, with the way they were dancing, that she might be open to a kiss. [ 118 ] Both Sub-Lieutenant Gagnon and Sub-Lieutenant Hennerbichler gave evidence that did not just raise doubt as to whether the kisses happened, but their evidence on J.P.’s demeanour and conduct at the critical time is also capable of raising doubt that if the kisses did happen that J.P. did not consent. [ 119 ] J.P. testified that, after the kisses, she remembers very little other than waking up the next morning.

The accused is not charged with anything other than kissing J.P. while dancing without her consent. [ 120 ] The Court noted that there was post-conduct evidence that, in the days and weeks after the first encounter, the accused obtained J.P.s cell number and sent her texts inviting her to have drinks with him. J.P. testified that she consistently found excuses to avoid meeting up with him. This evidence supports the fact that under normal circumstances, she was neither interested in the accused nor was she afraid to refuse his advances.

However, notwithstanding this, the test is not whether she later regretted her decision or whether she would have made the same decision if she had been sober, but rather, the test is whether, at the time that he allegedly kissed her, she did not want to be kissed by him. [ 121 ] When I reviewed the evidence of J.P. on the first two charges against the evidence as a whole, I found several issues with the overall reliability of her evidence.

In their own ways, Sub-Lieutenants Gagnon and Hennerbichler both described that they paid particular attention to the accused and J.P. dancing as one of them stated that they were the “only thing happening” in the room.

Sub-Lieutenant Gagnon described J.P. and the accused as voluntarily dancing together with no distance between them as they mutually rubbed up against each other. [ 122 ] At the time of the alleged offence, although there was no pre-existing personal relationship between J.P. and the accused, witnesses reported that the two danced together for a lengthy period of time, estimated to be at least an hour.

[ 123 ] The accused testified to dancing exclusively with J.P. and, as the night wore on, he admitted that they danced more intimately, with him positioned behind her, with his right hand on her right hip and his left hand on her left hip and her hand holding his. He explained that they were swaying their hips together and grinding. [ 124 ] Under cross-examination, J.P. confirmed that the nature of the way they were dancing, with her bum pressed against the front of the accused, it could be perceived as grinding.

Sub-Lieutenant Hennerbichler explained that she was not comfortable with the way they were dancing, explaining that she has been dating her boyfriend for four years and they do not dance like that.

This evidence infers that they were voluntarily dancing in a very intimate and provocative way, which the Court accepted would have attracted the attention of the two witnesses because it was a CTO dancing with a candidate. [ 125 ] When Sub-Lieutenants Gagnon and Hennerbichler finally departed in the early morning hours, both the accused and J.P. were still dancing together, in what they described as a close and intimate manner.

Sub-Lieutenant Gagnon testified that when they were departing, he asked J.P. if she wanted to leave with them, but she expressed a clear and unequivocal “no”, so they did not force it and left. When asked why he asked J.P. if she wanted to leave, he explained that he knew J.P. was not in a relationship with Lieutenant(

N) Clancy and he thought she might not want to be there with him. He explained that J.P. gave a clear “no” and did not appear upset. When asked to describe J.P.’s level of intoxication when they departed, he said she was not sober. [ 126 ] Under cross-examination, when Sub-Lieutenant Hennerbichler was asked whether they had asked J.P. to leave with them, she said no. When asked if J.P. could see they were leaving, she said yes. She explained that it did not appear that J.P. wanted to leave nor did it appear that she was being held against her will. She stated it looked like J.P. was having a good time.

When asked if she would have noticed if J.P. was trying to distance herself from the accused, she confirmed she would be able to tell, but in her assessment she was not. In her view, J.P. and Lieutenant(

N) Clancy were in their own little world. [ 127 ] In short, based on the independent observations of both Sub-Lieutenants Gagnon and Hennerbichler, J.P. appeared to be having a good time and in their assessment did not, appear to be in distress. [ 128 ] With both J.P. and the accused dancing together in such an intimate way, with him positioned behind her, embracing her, the Court is firstly not sure whether a kiss actually took place and, if there was contact, whether it was the result of a kiss or an attempt to communicate while standing so close.

Keeping in mind that J.P. was insistent that Sub-Lieutenants Gagnon and Hennerbichler either witnessed the kisses or alternatively were present when the kisses occurred and although they testified to paying very close attention to the accused and J.P. dancing together, neither of them witnessed any kissing or attempts by the accused to kiss J.P.

Further, both Sub- Lieutenants Gagnon and Hennerbichler were clear in stating that when they left, J.P. and the accused were still dancing together and having a good time. [ 129 ] While I certainly do not disbelieve J.P., when I weigh her evidence against the evidence as a whole, it does not leave me with the level of confidence required to determine beyond a reasonable doubt that the kisses actually occurred and even if they did that J.P. did not consent to being kissed at the time of the events.

It accepts that it is possible that a fleeting type kiss might have taken place, however, based on the witness testimony of the totality of J.P.’s conduct during the dancing and after the alleged kiss to be inconsistent with her claim of non-consent. [ 130 ] In case the court is wrong on whether a kiss occurred, the court went further in its analysis and found that the prosecution did not prove the absence of consent beyond a reasonable doubt.

Consequently, in accordance with the guidance set out in Hutchinson and the position advocated by the prosecution, since J.P’s conduct raised some doubt about the lack of consent, the court proceeded to assess whether J.P.’s consent was vitiated. Was J.P.’s consent vitiated? [ 131 ] As discussed previously, although the NDA is silent on consent, in interpreting whether or not consent is vitiated, the prosecution submitted that, in such a situation, the Court must also rely upon the common law.

The prosecution argued that based on the jurisprudence established in Ewanchuk , subsections 265(3) and (4) of the Criminal Code simply codified the long-standing common law rules (see paragraph 26). [ 132 ] The Court notes the wording in

section 273.1 of the Criminal Code on consent supplements the definition of consent in

section 265 which defines assault for all of the assault offences, including sexual assault. However,

section 273.1 of the Criminal Code goes

further and expands the circumstances set out in section 265(3) of the Criminal Code for assault. It essentially establishes that agreementto engage in activity cannot be reached where a complainant is incapable of giving consent as a result of an abuse of a position of trustpower or authority, the complainant expresses lack of consent or the complainant, having originally consented, expresses a change ofmind. [133] Further, after hearing the submissions from the prosecution, the court accepted as fact that in recent years, subsection 265(3)and

section 273.1 are codifications of the common law and provide some assistance to this Court in the absence of guidance on consentwithin the NDA. As LaForest J. stated in In R. v. Audet, (SCC), [1996] 2 S.C.R. 171, at paragraph 20: The relative positions of the parties have always been relevant to the validity of consent under Canadian criminal law.

The common lawhas long recognized that exploitation by one person of another person`s vulnerability towards him or her can have an impact on thevalidity of consent. [Citations omitted.] [134] Since J.P’s conduct raised some doubt about her lack of consent, the Court then proceeded to examine whether her consent wasvitiated because the accused induced J.P. to engage in the activity by abusing his position of trust, power or authority or in his exercise ofthat authority.

Was consent vitiated? [135] The prosecution argued that because the accused was J.P.’s instructor, J.P. did not push him away and let him kiss her as shefeared that things might go badly for her and she might receive a reprimand. Relying upon this position, the prosecution argued that ifthe Court finds that the complainant consented, such consent was vitiated by the fact that the accused was in a position of trust orauthority as a 35-year-old instructor, senior in rank with power over the complainant being a 22-year-old Naval Cadet. [136] In R. v.

Alsadi, 2012 BCCA 183, at paragraph 19, the Court quoted and relied upon the following distinction between thedifferences between subsection 265(3) and subsections 273.1(1) and (2): [19] In R. v. Lutoslawski, 2010 ONCA 207, 326 D.L.R. (4th) 637, aff’d [2010] SCC 2010 SCC 49 , 3 S.C.R. 60, the OntarioCourt of Appeal addressed the scope of s. 265(3)(

d) as compared to that of paragraph 273.1(2)(

c) at paras. 12 and 13: I agree with Crown counsel’s submissions that s. 273.1(2)(

c) is broader than s. 265(3)(d).

Section 273.1(2)(

c) speaks not only to theabuse of a position of authority but also to the misuse of a position of power or trust. The

section addresses the kinds of relationships inwhich an apparent consent to sexual activity is rendered illusory by the dynamics of the relationship between the accused and thecomplainant, and by the misuse of the influence vested in the accused by virtue of that relationship. The term “exercise of authority” in s.265(3)(

d) suggests a coercive use of authority to overcome resistance to a consent. Inducing consent by abusing the relationships set outin s. 273.1(2)(

c) does not imply the same kind of coercion. An individual who is in a position of trust over another may use the personalfeelings and confidence engendered by that relationship to secure an apparent consent to sexual activity. The distinction between s. 273.1(2)(

c) and s. 265(3)(

d) was also addressed in R. v. Makayak, 2004 NUCJ 5 at para. 70:

Section 273.1(2)(

c) broadened the scope of criminal conduct to include breach of trust and power. However, the

section also added thewords “induces the complainant ... by abusing a position of trust, power, or authority”. Does this mean there has to be some form ofcoercion? In my view, these words remove the need for coercion that may be present for section 265(3)(d). It is clear from R. v.Matheson [Citation omitted.] that it is the exploitation of the imbalance that is the key consideration.

Section 273.1(2)(

c) was passed anumber of years after the courts had struggled with section 265(3)(d). Parliament had the opportunity to consider the case law that haddeveloped up to that point. The use of the word “induces” introduces a more subtle form of pressure that can be inferred from thecircumstances of the exercise of the power or authority. [137] The ultimate determination of whether Lieutenant(

N) Clancy induced J.P. to engage in the kisses by abusing a position of trust,power or authority begins by first deciding whether Lieutenant(

N) Clancy occupied either a position of trust or authority.

Was Lieutenant(

N) Clancy occupying a position of trust, power or authority over J.P.? [ 138 ] Although prosecution submitted that the accused was in a position of trust, he provided little explanation for the nature of the trust relationship nor any particular court martial or CMAC precedent for the Court to rely upon. After an inquiry by the Court, the prosecution did provide it with the court martial case of R. v. Simms , 2016 CM 4001 ; however, the context of that case is very different from the case before the Court and it provides little assistance.

As courts have repeatedly found, the determination of whether an accused occupies a position of trust is not easy and there is no straightforward definition. Courts have found it more applicable when considered in the context of accused persons interacting with children or persons connected by some level of dependency. [ 139 ] The determination as to whether someone is in a position of trust requires a contextual analysis which must be supported both objectively and subjectively, having regard to all the circumstances (see paragraph 62 of R. v. Kiared , 2008 ABQB 767 ).

In Audet , the SCC provided some guidance on what constitutes a position of trust, confirming the difficulty in defining what it is at paragraph 37: . . . the concept of a "position of trust" is difficult, perhaps even more than that of a "position of authority", to define in the abstract in the absence of a factual context.

For this reason, it would be inappropriate for this Court to try to precisely delineate its limits in a factual vacuum, especially since very few judicial decisions have so far commented on this relatively recent provision of the Criminal Code . [ 140 ] Without going into a longer analysis, the Court was provided with no evidence nor submissions, upon which it could conclude that the accused occupied a position of trust with respect to J.P., who was an adult.

Abuse of authority? [ 141 ] In order to prove that J.P.’s consent was vitiated by an abuse of authority, there must be some evidence that demonstrates a clear power imbalance between the accused and J.P. and the exploitation of that imbalance by him in determining whether J.P.’s apparent consent was obtained through either inducement or coercion. [ 142 ] The first step in assessing whether the accused might have abused his authority first requires confirmation that he held a position of authority.

Despite the prosecution raising the argument that J.P.’s consent was vitiated by an abuse of authority, the Court was not provided with a job description nor evidence to describe the actual authorities held by Lieutenant(

N) Clancy. The evidence the Court heard came from very young junior officers who were students on the same course, rather than authoritative members of the divisional system who could explain exactly the accused’s role and his authorities.

Although the evidence of these very junior officers was important to understand the subjective view of the students, including J.P., in the future, the Court would also benefit from evidence and testimony from someone who could speak specifically to the role and authorities that an accused holds with respect to a complainant. [ 143 ] From the evidence that came out in the testimony of the accused himself, he voluntarily accepted a four-month full-time Class B contract to fill the position as the CTO for the MARS III course. It was also clear from the evidence that although Lieutenant(

N) Clancy did have a significant amount of influence in the day-to-day administration of the MARS III course, he did not fill a functional role as a divisional officer within the school nor with respect to the students on course. Further, the evidence suggests that there was a set procedure for assessing candidates who were struggling and a set protocol whereby a candidate would undergo a training review before a candidate could fail. As such, his power to terminate a student on his own accord was functionally limited.

Aside from the power to evaluate the students on the courses that he taught, he did fulfil the role of being the focal point, aggregating feedback and the evaluations that the candidates received from other instructors. He held the role of providing the students with ongoing feedback and providing them with tips on how they could improve their performance and be successful. From that perspective, he did have significant influence on how they would perform overall.

It was not clear from the evidence whether this influence was from his own personal approach or whether it was built into the position he held as CTO, but the evidence suggests that his input and guidance were both valuable, appreciated and respected by the candidates. [ 144 ] The course candidates were reservists, who primarily served during the summer months while they were not attending post- secondary education. There was no evidence to suggest that their s

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