Private D.T. Vu was charged with sexual assault. It was alleged that he performed a sex act on the complainant who was incapable of consenting to the act by reason of advanced intoxication. The military judge concluded that the Crown did not prove beyond a reasonable doubt that the complainant failed to consent.

The Crown appealed to the Court Martial Appeal Court. The appeal was dismissed. However, in dissent, Justice McVeigh concluded that the military judge erred in law by failing to consider all of the evidence cumulatively, which led him to speculate improperly about alternative theories. These errors might have reasonably had a material bearing on the verdict. Further, the military judge erred by relying on improper inferences which, in effect, amounted to an insistence that the complainant’s intoxication had to be corroborated beyond the available evidence in this case.

The Crown appealed to the Supreme Court of Canada as of right.