Ex-Gagetown soldier sentenced to 3 years for sexual assault released pending appeal

A former soldier at a Canadian forces base in New Brunswick who was sentenced Thursday in British Columbia to three years in prison for sexually touching an unconscious female colleague and secretly recording another while she used the washroom has been granted release pending an appeal.

Retired Cpl. Colin McGregor is appealing his court martial conviction and sentence at CFB Esquimalt in Victoria, said public affairs officer Maj. Edward Stewart.

The notice of appeal cites "the legality of any or all of the findings with regards to all [five] charges, and specifically the dismissal of the charter applications in respect of the search and seizure" of his home in Arlington, Va., in 2017, as well as "the delay," said Stewart.

McGregor is also appealing the legality of the sentence imposed by the military judge, which included dismissal with disgrace from the Canadian Armed Forces, an order to provide a DNA sample for the sex offenders registry, and a 10-year prohibition from owning any weapons, including firearms, crossbows and explosives.

"It could be about six to nine months before the matter is heard," said Stewart.

The court martial administrator has 90 days to produce the appeal book, and McGregor will then have 30 days to file his memorandum of fact and law, Stewart said. The Canadian Armed Forces will have 30 days to file a response and then a hearing date will be scheduled.

McGregor, who lives in Alberta, has been released on an undertaking to report his whereabouts to the military police, to not contact the complainants and to surrender himself into custody when required to do so, said Stewart.

The 14-year veteran was found guilty Monday of sexual assault, two counts of voyeurism, one count of possession of a device for surreptitious interception of private communication, and disgraceful conduct.

The offences occurred between Jan. 1, 2011, and Jan. 30, 2017, in Victoria and in Alexandria, Va., where McGregor lived while working a resource management support clerk with Canadian defence liaison staff in Washington, D.C.

The two victims were military members in Esquimalt and Washington at the time of the incidents, officials have said.

Sexual assault carries a maximum sentence of 10 years in prison.

McGregor was found not guilty on a second count of possession of devices and a charge of conduct to the prejudice of good order and discipline.

Immediate release not unusual

The prosecution objected to his release pending his appeal, but the military judge, Cmdr. Martin Pelletier, sided with defence lawyer David Hodson.

Immediate release once a notice of intention to appeal is filed is common in the military, according to Hodson.

"Very often both the defence and the prosecution recognize that there is this right, this regulation, and just concede they're released under the circumstances," he said.

"That's one of the benefits of the military criminal justice system. In the civilian criminal justice system, very often it's a long protracted process to seek bail pending appeal. It can take weeks, if not months sometimes."

Once a case goes to the court martial appeal court, Hodson said it could take months or even a year to be heard. 

He believes McGregor's appeal, which deals with international law issues, could ultimately go all the way to the country's highest court.

"There may be a gap in the legislation, certainly a charter controversy, and that needs to be explored and clarified and possibly by the Supreme Court of Canada at some point in the future."

Will argue diplomatic immunity

McGregor will be represented by a different lawyer on appeal, but Hodson contends McGregor was essentially a diplomat in Washington and that his home would have been protected from search and seizure through diplomatic immunity.

But the Canadian Forces National Investigation Service, working in collaboration with local police, were able to secure an American search warrant to search his residence after the Washington-based victim discovered a recording device at her home.

Investigators found a video of an alleged sexual assault in Esquimalt in 2011, officials previously said. "A number of computers, hard drives, computer equipment and other media storage devices" were seized.

McGregor was charged in May 2017 and repatriated to the 5th Canadian Division Support Base Gagetown in Oromocto, N.B. He retired from the military four months later.

Hodson said the 28-month delay between the charges being laid and the trial and sentencing will also form part of his appeal.

McGregor joined the Armed Forces as a regular member of the Canadian Army in July 2003 and served on various bases over the years, including Kingston and Borden, Ont.

He has also deployed on three missions: Bahrain in 2006, Afghanistan in 2011, and Kuwait in 2014.