In 2017, The Snelgrove sexual assault trial caused public outcry when an RNC constable was accused, and then acquitted, of sexual assault. The jury was never allowed to consider what was foremost in the public’s mind: the alleged assailant was a police officer, on-duty and in uniform, when he gave the complainant a ride home and then entered her apartment.

Now that the Crown has won its appeal of that verdict, in a 2 to 1 ruling in the Newfoundland and Labrador Court of Appeal (NLCA), a new jury may finally get that chance.

Juries are “triers of fact.” They hear evidence, including witness and expert testimony, determine credibility, and weigh the evidence accordingly. But juries are not legal experts; as laypeople, average citizens, our peers may judge us, but they might not know the law. That is why the judge — the “gatekeeper” of the law — must give the jury instructions about the law and how to apply it.

The Role of Section 273.1(2)(c) of the Criminal Code in This Case

Partway through the original trial, in voir dire (a session without the jury present), the Crown argued that Justice Marshall (the trial judge) should instruct the jury on section 273.1(2)(c) of the criminal code. It reads, “No consent is obtained … where the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority.”

The Crown maintained that the complainant had no intention of consenting, and, in fact, could not consent because she was either unconscious or so drunk as to make consent impossible. He argued that if the jury found Snelgrove’s testimony credible (that Jane Doe had implicitly and verbally consented), they could still convict him if Snelgrove got that consent by abusing his “position of trust power or authority.” They were never given that option.

Justice Marshall sided with the defence. She pointed out that Jane Doe could not recall what happened, and so never testified that Snelgrove “induced” consent. Not convinced of any evidence that Snelgrove used being a cop to gain consent, she concluded it would be unfair to instruct the jury on this aspect of the law.

This decision was the main grounds for the appeal submitted by Crown attorney, Iain Hollett. He argued that there was evidence, circumstantial evidence, and that instead of instructing the jury and allowing them to come to their own conclusions, Justice Marshall judged that evidence herself (ex. Jane Doe stated that because of “the state she was in” she “figured it would be safer to go with a police officer than a cab driver”)

Hollett argued in the NLCA that, “It is clear from the very nature of the relationship that the police officer on duty, in uniform, in a police car, is in a position of trust and authority over all of us. That is the very nature of the relationship.” Each of the three appeal judges agreed with that point. Even the dissenting judge conceded that the power imbalance was inherent in Snelgrove’s position over Jane Doe.

But Did He “Induce Consent” By Abusing His Position?

But the power imbalance is not enough. Did he “induce” consent by “abusing” that position? Otherwise, as the dissenting judge points out in their “slippery slope” take, “Without the inducement requirement, Parliament would be … virtually prohibiting all sexual relationships of all those in a position of trust, power, or authority.”

The question is , Does criminal abuse of power to gain consent have to be an overt act? The crown argued that “inducing” consent can be subtle, and evidence of inducement can be inferred from context. Hollett told me “lots of times people don’t know why they consent.” So there may be inducement without direct complainant testimony.

This Decision Will Affect The Legal Definition Of Consent In Canada

This gets to the heart of the legal question of this appeal. What does “induces”/“inducement” mean in these circumstances? Hollett argues that, up to now, all case law on this is “unclear” and “contradictory.” Case law is law. How the criminal code has been interpreted and applied in individual trials shapes the law itself.

This decision affects more than Snelgrove, Jane Doe, and the witnesses who may have to re-testify. It affects the legal definition of consent in Canada. So far, Hollett pointed out, the Supreme Court of Canada “has not weighed in on what are the parameters? What needs to be proven? What do the words mean?” He asked the NLCA to “provide some clarity” on what, exactly, 273.1(2)c means. He asked them to make new case law.

And they may have. As one of the assenting judges states in her opinion, the “surrounding circumstances” may be considered by the jury to decide if consent was full and free or “persuad[ed] or entic[ed].”

“Persuaded or enticed” is a broader, more nuanced way to interpret that one word: induced. She determined that a jury may consider the “vulnerability” of an intoxicated Jane Doe as compared to a sober officer of the law.

The second judge went even further. She wrote, “in this case, it was open to the jury to consider the complainant to have been vulnerable — as a drunk civilian woman getting a ride home in the middle of the night from a sober police officer in his police car, and then letting him into her apartment believing he was checking on her safety.”

They are not saying he is guilty of inducing consent, only that the circumstance itself was (circumstantial) evidence, and the jury should be allowed, indeed, instructed, to assess it for themselves.

And a new jury may get to do just that. Because the ruling was not unanimous, the defence has 30 days to appeal this decision to the Supreme Court of Canada. If this is appealed to the Supreme Court, any decision they make, and how they phrase their opinions, would supersede lower court rulings and could shape how we interpret consent law across the country, and for a long time.

If the defence does not appeal (and we may know either way, by the time this is published), the crown can order a retrial, and this time the jury will have more options.