Court martial comes down to credibility of complainant, accused, says judge

The case against Cpl. Steven O'Dell comes down to credibility in a he-said-she-said court martial at Base Gagetown.

The complainant testified earlier this week that O'Dell intentionally touched her sexually during a training exercise near Summerside, P.E.I., in 2018.

O'Dell has told different versions of the event, but the one he stuck to during his testimony is that he grabbed the complainant's thigh — and that of another soldier — to haul himself up off the floor of a light-armoured vehicle.

After closing arguments by both sides on Thursday morning, Judge Commander Catherine Deschênes noted that the case revolves around credibility and defence lawyer, Navy Lt. Brian Wentzell, agreed.

O'Dell, 29, is charged under the National Defence Act with sexual assault. The offence is alleged to have occurred between Nov. 1 and 22, 2018.

O'Dell chose to be tried by a panel of his military peers. The panel began the week with five members but was reduced to four when one member had to return home for a family emergency.

In his final statement to the panel, military prosecutor Maj. Max Reede said the accused cannot be believed. He said there were "countless inconsistencies in his evidence," while other details were simply "implausible."

Reede said O'Dell gave three different versions of what happened in the back of the LAV, "back-pedalled" on some details while testifying, admitted that things "slipped his mind," and claimed that he left out certain details in order to "keep the narrative simple."

Reede said O'Dell lied to MPs on several occasions and omitted facts on other details.

He said the complainant, on the other hand, told the same story at the court martial that she gave to military police investigators nearly two years after the incident.

Reede summarized her story by saying the complainant, whose identity is protected by a publication ban, and O'Dell found themselves taking "hard cover" in the back of an LAV during an explosives detection training exercise.

The complainant sat on a bench, closed her eyes and rested her head back, while O'Dell stretched out on the floor in front of her.

She said she felt something touch the inside of her knee and travel up her thigh. She said she froze momentarily, but when it reached her genital area, her head snapped forward and she opened her eyes to see O'Dell's hand between her legs.

She batted his hand away and asked him what he was doing.

O'Dell responded, "Is that not OK?"

And she said, "Why the f--ck would that be OK?"

Under cross-examination, Reede led O'Dell through some of the things that he told military investigators in April 2021 that he recanted during his testimony. He also challenged him on different versions and inconsistencies in his story over the last four years.

"You cannot rely on anything he says," Reede told the panel on Thursday.

"He told three different things to three people."

Quoting Mark Twain, Reede told the panel, "If you tell the truth, you don't have to remember anything."

Defence closing arguments

In his final statement to the panel, Wentzell said there was "a lot of hay being made" about O'Dell's different stories.

He said some of that goes to memory. He said when an event happens that causes you to think about a past event, memories "get locked in" or triggered by turning one's mind to them after some time of not thinking about them.

He said it's possible for O'Dell to recall things better now than he did when speaking to the military police about it.

Wentzell said the correct version is the one that had O'Dell pulling himself up off the floor of the LAV by grabbing the thighs of the complainant and the soldier beside her.

He said O'Dell's hand may have gotten "too close for comfort" to the complainant's crotch, but it wasn't intentional and did not constitute a sexual assault. He was just trying to pull himself up.

Lawyers for both sides will meet with the judge on Friday morning to finalize her instructions for the panel. The instructions are tentatively scheduled to be delivered Friday afternoon. At that point, the panel will deliberate the case and decide whether O'Dell is guilty or not guilty.