Military appeal court orders retrial in sexual assault case

OTTAWA — A retrial has been ordered in the case of a Canadian Forces member who was acquitted last year of sexually assaulting a female colleague while the two were deployed on a training exercise in Jamaica in 2015.

A military judge found Cpl. Simon Cadieux not guilty of sexual assault and drunkenness following a court martial in May 2017, but the Court Martial Appeal Court says the judge erred in his ruling.

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Cadieux and his special forces unit were in Jamaica in November 2015 when they held a barbecue that included drinking and partying to mark the end of a training exercise.

According to testimony delivered during the initial court martial, a drunk Cadieux went into a female-only tent after the party where he woke up another service member and the two kissed in the dark before she realized he wasn't who she thought.

The woman also testified that she was woken up by a touch to the pelvic area, which Cadieux said was accidental.

Military judge Lt.-Col. Louis-Vincent d'Auteuil ultimately acquitted Cadieux after concluding the corporal did not enter the tent intending to kiss or engage in any sexual activity with his colleague.

He also concluded the woman had initiated the kiss and Cadieux subjectively believed she had consented to it.

But in the Appeal Court's ruling, a three-judge panel unanimously agreed that d'Auteuil did not properly test Cadieux's argument that he believed the woman had consented to the kiss given various other factors.

Those included his admitting to having woken her up, being intoxicated, that it was dark in the tent and that "there was no romantic relationship between the two of them before or during the exercise or on the evening in question.

"In other words, and stated rather bluntly, the complainant had no reason to kiss Cpl. Cadieux, he had no reason to believe she wanted to kiss him, and, importantly, immediately prior to the actual kissing, he had no reason to believe she wanted him to kiss her."

The Appeal Court's decision to order a retrial comes as military commanders have been cracking down on sexual misconduct in the Forces, and was welcomed on Friday by Col. Bruce MacGregor, the military's top prosecutor.

"The recent decision in the Cadieux case from the Court Martial Appeal Court of Canada is but another example of our efforts to pursue justice for all victims of sexual misconduct by enforcing the rule of law and promoting the discipline, efficiency and morale of the women and men who proudly serve," he said.

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