Defence in sex assault court martial wants to use complainant's past as evidence

A military judge will decide whether evidence regarding a complainant's past can be entered as evidence at a court martial underway at the armoury in Charlottetown.

A young soldier is charged with sexual assault and disgraceful behaviour, under the National Defence Act. He has pleaded not guilty to the charges.

The alleged incident took place a number of years ago at 5th Canadian Division Support Base Detachment Aldershot in Nova Scotia. Both the accused and the complainant were minors at the time, so no information can be published that would reveal their identities.

The court martial began Wednesday, in the gymnasium of the J. David Stewart Armoury in Charlottetown, with testimony by the complainant.

She described an alleged incident at Aldershot in which the accused followed her into her bedroom on the military base, physically restrained her and kissed her on the mouth and neck.

She testified she did not consent and used physical force — her elbows — to successfully repel the unwanted touching, in an incident that went on for "seven to 10 minutes."

Following the woman's testimony, the soldier's lawyer filed an application with the judge to present evidence regarding the complainant's past.

The defence lawyer, Maj. Alexandre Gélinas-Proulx, told court the evidence relates to verbal statements allegedly made by the complainant prior to the incident.

Judges can allow evidence

Canada's Criminal Code does not normally allow evidence about a complainant's past sexual activity. But the law does allow judges — both civilian and military — to allow exceptions.

The judge must be satisfied that the evidence is about a specific incident related to the case, and not merely intended to discredit the complainant.

In addition to military prosecutors, civilian lawyers Nash Nijhawan and Amy Burnette are participating in the court martial, via video link from Halifax, in support of the complainant.

They'll be involved in a closed-door hearing of the defence's application, after which the judge will decide whether to allow evidence of the complainant's past to be entered at trial, or not.

The presiding judge, Cmdr. Sandra Sukstorf, adjourned the proceedings until Thursday, when the private hearing of the application will begin. The judge told the court she'll announce her decision when the court martial resumes Friday.

The court martial is being held on Prince Edward island because the soldier has links to military organizations within the province.

J. David Stewart Armoury is the new name of the Canadian Forces facility in Charlottetown, at the corner of Water and Rochford streets. It was formerly called Queen Charlotte Armoury. 

An official dedication ceremony for the renamed facility is slated for Thursday.