R. v. Snelgrove

Moldaver J. — This appeal comes to us as of right from the Court of Appeal of Newfoundland and Labrador. The issue before us is whether a majority of that court erred in setting aside the appellant’s acquittal on a charge of sexual assault following a trial by judge and jury and ordering a new trial. The particular issue at hand is whether the majority of the Court of Appeal wrongly concluded 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 — a provision which provides that no consent is obtained where an accused, by abusing a position of trust, power, or authority, induces a complainant to engage in sexual activity.

We would dismiss the appeal, substantially for the reasons of the majority of the Court of Appeal.

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 freely choose to consent to sexual activity” (R. v. Hogg (2000), 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 by s. 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 individual who is in a position of trust over another may use the personal feelings and confidence engendered by that relationship to secure an apparent consent to sexual activity” (para. 12).

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 his position of trust and authority, the accused took advantage of the complainant, who was highly intoxicated and vulnerable, by using the personal feelings and confidence engendered by their relationship to secure her apparent consent to sexual activity. An instruction under s. 273.1(2)(c) was therefore warranted. Accordingly, we would dismiss the appeal.