Authority Figures & Evidence of Inducement in Sexual Assault Cases: Snelgrove-by Katie MacDermaid

Authority Figures and Evidence of Inducement in Sexual Assault Cases: A Commentary on R v Snelgrove [2018 NLCA 59]

by Katie MacDermaid

Under section 273.1 of the Criminal Code consent means “the voluntary agreement of the complainant to engage in the sexual activity in question.”[1] This definition is not absolute. There are certain situations which can nullify consent, like an abuse of power or authority.[2] If a sexual assault case involves an authority figure, there is an additional and more stringent test applied. The underlying policy rationale is that it provides additional protection to complainants. In 2018, the Newfoundland and Labrador Court of Appeal provided clarity about abuse of power in sexual assault cases and explored the evidentiary requirements applicable to on-duty police officers. Snelgrove serves as a reminder that law enforcement is not always representative of the justice system and that its officers are certainly not above the law.

In R v Snelgrove, the question of inducement, required to satisfy the abuse of power test, was the leading issue.[3] The appellant, Mr. Snelgrove, appealed the trial judge’s decision that he had sexually assaulted the complainant while acting in the capacity of an on-duty police officer for the Royal Newfoundland Constabulary (RNC). The complainant, a 23-year old woman, left a bar around 2:30am and when she could not find any taxis, approached Snelgrove’s marked police vehicle. The appellant drove the complainant home and helped her find a way inside after she realized she had lost her keys. The appellant entered her apartment. The complainant recalls being too drunk to stand and took a seat on her couch. The next thing she remembers is Snelgrove having sex with her. The appellant alleges that the complainant invited him inside and initiated the sexual activity, but the complainant was too intoxicated to remember.

The Crown requested that the trial judge, in their charge to the jury, include an instruction based on section 273.1(2) regarding the vitiation or nullification of consent, on the basis that “the accused induced the complainant to engage in the activity by abusing a position of trust, power or authority.”[4] In a voir dire on this matter, the trial judge refused the request and determined that the evidentiary foundation to engage the proper sections were absent because the complainant, due to her intoxication, could not recall much of the evening,.[5] The trial judge also determined that there was no evidence of a codependent relationship.[6]

The appellate-level decision revolved primarily on the application of section 273.1(2)(c) of the Criminal Code in the case of an on-duty police officer. The Court looked to whether Mr. Snelgrove had abused his position of authority to induce the complainant to participate in the sexual activity and answered in the affirmative. The Court struggled as to whether or not there need be a finding of co-dependency to satisfy the evidentiary threshold and accepted the Crown’s argument that there should be a more flexible approach to this issue.

The first step in the analysis relies on establishing that a position of trust or authority exists. Welsh JA of the NLCA was satisfied that “the relationship of an on-duty police officer to a member of the public is traditionally one of trust or authority and in absence of any evidence to the contrary, that relationship is presumed and does not require evidence.”[7] This presumed relationship makes it easier to meet the threshold for abuse of authority. The second step looks for evidence of inducement. In order for the Crown’s argument to be successful, “the Criminal Code requires evidence from which it could be inferred or concluded that she was induced to consent to the sexual activity by Mr. Snelgrove’s abuse of his position of trust or authority.”[8] The fact that a person is in “a position of trust or authority is, by itself, not sufficient to vitiate consent where sexual activity occurs.”[9] The plaintiff was not prevented from consenting to any sexual activity with the appellant on that basis alone and therefore, additional factors must be present to prove that the sexual assault was induced as a result of the appellant’s position. Based on precedent, direct evidence from the complainant is not required and inferences can be drawn from circumstantial evidence.[10] This is significant because it protects victims of sexual assault from being revictimized in the court process and provides an alternative mode for establishing evidence when memory of events cannot be recalled due to psychological or practical reasons, such as trauma or alcohol.

To the issue of co-dependency, the court accepted the Crown’s argument that section 273.1 (2)(c) engages a “more nuanced or subtle form of pressure or inducement which may be inferred from the circumstances” and reiterated that not all cases require a finding of co-dependency.[11] Rather, the court may rely on circumstantial evidence to determine the issue. In this case, the court looked to the fact that the complainant was intoxicated and the appellant was not, that the appellant knowingly ignored RNC procedure by failing to report the presence of a female passenger in his vehicle and going outside his assigned area, his decision to go into the complainant’s residence and his admission that he had to help the complainant undo his belt buckle.[12]

The NCLA concluded that the trial judge erred in law in interpreting the relevant Criminal Code sections and in declining to instruct the jury about vitiation of the complainant’s consent on the basis of a lack of evidentiary foundation.[13] The court allowed the appeal and ordered a new trial. This decision is significant because it provides protection to victims. Acknowledging that co-dependency is not always explicit, but rather nuanced, and that it is not a required finding in every case, lowers the evidentiary threshold. In addition, substituting victim testimonies for circumstantial evidence is not just helpful, but actively anti-harmful. Since the evidence does not have to come from the victims themselves, it may be easier to report these crimes.

[1] Criminal Code, RSC 1985, c C-46 s 273.1. [2] Ibid at s 273.2(c). [3] R v Snelgrove, 2018 NLCA 59 [Snelgrove]. [4] Supra at note 3. [5] Ibid at para 12. [6] Ibid. [7] Ibid. [8] Snelgrove, supra at note 3 at para 18. [9] Snelgrove, supra at note 3, at para 15. [10] Ibid at para 19. [11] Ibid at para 23. [12] Ibid at para 46. [13] Ibid.