Supreme Court


Criminal Law

Defences

Consent

Accused took advantage of complainant by using personal feelings to secure her apparent consent

Accused police officer was acquitted of sexual assault. Crown appealed. Court of Appeal found that trial judge erred in refusing to instruct jury on s. 273.1(2)(c) of Criminal Code, which provided that no consent was obtained where accused, by abusing position of trust, power or authority, induces complainant to engage in sexual activity. Court of Appeal set aside accused’s acquittal and ordered new trial. Accused appealed. Appeal dismissed. Instruction under s. 273.1(2)(c) was warranted. It would have been open to jury to conclude that by abusing his position of trust and authority, accused took advantage of complainant, who was highly intoxicated and vulnerable, by using personal feelings and confidence engendered by their relationship to secure her apparent consent. Section 273.1(2)(c) is aimed at protection of vulnerable and weak and preservation of right to freely choose to consent to sexual activity. Inducing consent by abusing relationships set out in s. 273.1(2)(c) did not imply same kind of coercion contemplated by s. 265(3)(d), which speaks to consent obtained where complainant submits or does not resist because of exercise of authority.

R. v. Snelgrove (2019), 2019 CarswellNfld 120, 2019 CarswellNfld 121, 2019 SCC 16, 2019 CSC 16, Moldaver J., Karakatsanis J., Brown J., Rowe J., and Martin J. (S.C.C.); affirmed (2018), 2018 CarswellNfld 378, 2018 NLCA 59, B.G. Welsh J.A., C.W. White J.A., and L.R. Hoegg J.A. (N.L. C.A.).

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