Carl Douglas Snelgrove Appellant v. Her Majesty The Queen, 2019 SCC 16

SUPREME COURT OF CANADA Citation: R . v . Snelgrove , 2019 SCC 16, [2019] 2 S.C.R. 98 Appeal Heard: March 22, 2019 Judgment Rendered: March 22, 2019 Docket: 38372 Between: Carl Douglas Snelgrove Appellant and Her Majesty The Queen Respondent Coram: Moldaver, Karakatsanis, Brown, Rowe and Martin JJ. Reasons for Judgment: (paras. 1 to 4) Moldaver J. (Karakatsanis, Brown, Rowe and Martin JJ. concurring) R . v. Snelgrove, 2016 SCC 16 , [2019] 2 S.C.R. 98 Carl Douglas Snelgrove Appellant v. Her Majesty The Queen Respondent

Indexed as: R. v. Snelgrove 2019 SCC 16 File No.: 38372. 2019: March 22.

Present: Moldaver, Karakatsanis, Brown, Rowe and Martin JJ. on appeal from the court of appeal for newfoundland and labrador Criminal law — Charge to jury — Sexual assault — Vitiation of consent — Police officer acquitted by jury of sexual assault— Court of Appeal setting aside acquittal and ordering new trial — Trial judge erred in refusing to instruct jury on provision whichprovides that no consent is obtained where accused induces complainant to engage in sexual activity by abusing position of trust, power,or authority — New trial warranted — Criminal Code, R.S.C. 1985, c. C-46, s. 273.1(2)(c).

Cases Cited Referred to: R. v. Hogg (2000), (ON CA), 148 C.C.C. (3d) 86; R. v. Lutoslawski, 2010 ONCA 207, 258C.C.C. (3d) 1. Statutes and Regulations Cited Criminal Code, R.S.C. 1985, c. C-46, ss. 265(3)(d), 273.1(2)(c). APPEAL from a judgment of the Newfoundland and Labrador Court of Appeal (Welsh, White and Hoegg JJ.A.), 2018NLCA 59, 366 C.C.C. (3d) 164, 50 C.R. (7th) 133, [2018] N.J. No. 300 (QL), 2018 CarswellNfld 378 (WL Can.), setting aside theacquittal of the accused and ordering a new trial. Appeal dismissed. Randolph J. Piercey, Q.C., and Michael Crystal, for the appellant. Iain R. W.

Hollett, for the respondent. The judgment of the Court was delivered orally by [1] Moldaver J. — This appeal comes to us as of right from the Court of Appeal of Newfoundland and Labrador. The issuebefore us is whether a majority of that court erred in setting aside the appellant’s acquittal on a charge of sexual assault following a trialby judge and jury and ordering a new trial. The particular issue at hand is whether the majority of the Court of Appeal wronglyconcluded that the trial judge erred in refusing to instruct the jury on s. 273.1(2)(

c) of the Criminal Code, R.S.C. 1985, c. C-46 — aprovision which provides that no consent is obtained where an accused, by abusing a position of trust, power, or authority, induces acomplainant to engage in sexual activity. [2] We would dismiss the appeal, substantially for the reasons of the majority of the Court of Appeal. [3]

Section 273.1(2)(

c) has as its aim “[t]he protection of the vulnerable and the weak and the preservation of the right to freelychoose to consent to sexual activity” (R. v. Hogg (2000), (ON CA), 148 C.C.C. (3d) 86 (Ont. C.A.), at para. 17).Inducing consent by abusing the relationships set out in s. 273.1(2)(

c) does not imply the same kind of coercion contemplated bys. 265(3)(

d) of the Criminal Code, which speaks to consent obtained where the complainant submits or does not resist by reason of the“exercise of authority”. Rather, as Justice Doherty observed in R. v.

Lutoslawski, 2010 ONCA 207, 258 C.C.C. (3d) 1: “An individualwho is in a position of trust over another may use the personal feelings and confidence engendered by that relationship to secure anapparent consent to sexual activity” (para. 12). [4] On the facts of this case, we are of the view that it would have been open to the jury to conclude that by virtue of abusing hisposition of trust and authority, the accused took advantage of the complainant, who was highly intoxicated and vulnerable, by using thepersonal feelings and confidence engendered by their relationship to secure her apparent consent to sexual activity.

An instruction unders. 273.1(2)(

c) was therefore warranted. Accordingly, we would dismiss the appeal. Judgment accordingly. Solicitors for the appellant: Noonan Piercey, St. John’s; Spiteri & Ursulak, Ottawa. Solicitor for the respondent: Attorney General of Newfoundland and Labrador, St. John’s.