Crown to argue Friday for a new trial for RNC officer found not guilty of sexual assault
Crown says the trial judge erred in instructions to Snelgrove jury
What may be one of the most anticipated appeals of a court ruling this province has ever witnessed will take place in St. John's on Friday.
It was just over a year ago that a jury at Supreme Court in St. John's found RNC officer Carl Douglas (Doug) Snelgrove not guilty of sexually assaulting a woman while he was on duty.
That decision sparked public outcry and protests, including one at the courthouse the evening the jury gave its decision.
According to documents filed with the court, Crown attorneys will argue that Justice Valerie Marshall failed to properly instruct the jury on consent and that she didn't give them any instructions as to how consent might have been removed because Snelgrove, as a police officer, was in a position of trust, power or authority.
In December 2014, Snelgrove, 40, picked the woman up in downtown St. John's after she had spent the night drinking. She testified that she felt it was safer to go home with him rather than with a cab driver, and that she was very drunk and doesn't remember much of what happened.
Snelgrove testified that when they got to her house, she removed her clothes, took down his pants and initiated sex with him.
She testified that they were in her living room, and that she was too drunk to stand up, so she laid or sat on her loveseat.
She testified that when she came to she didn't have any clothes on and Snelgrove was having sex with her.
The Crown will argue that Marshall failed to make it clear to the jury that even if consent had been given, that consent ceased to be valid if the jury was satisfied that the woman became unconscious at any time during the sexual activity.
In response, Snelgrove's lawyer, Randy Piercey, will argue that Marshall made it abundantly clear that an unconscious person cannot consent to sex.
In her charge to the jury, Piercey points out, Marshall said the complainant "could only validly consent if she was capable of consenting to the sexual activity."
Piercey adds that Marshall also told the jury, "You will have to decide if the Crown has established beyond a reasonable doubt that (the complainant) was unconscious or whether she was so intoxicated that she was incapable of consenting to the sexual activity."
Piercey also notes that when he cross-examined the complainant she agreed she could have been conscious the whole time.
On Snelgrove being a police officer and in a position of authority, the Crown also argues that Marshall was wrong when she wouldn't give the jury instructions on that issue on the grounds that there was no evidence the complainant felt compelled to have sex with Snelgrove because he was a police officer.
The Criminal Code puts it this way: "No consent is obtained where the accused induces consent though the abuse of a position of trust, power or authority."
The Crown says Marshall was wrong when she said the complainant didn't show any evidence she was induced into having the sex, and should have given the jury instructions on the section of the Criminal Code.
The Crown will argue it wasn't necessary for the complainant to give any evidence in that regard, because the inducement can be inherent in a relationship where one person is in a position of power, trust, or authority over another person, such as a doctor to a patient.
Defence says judge was right
In his response in this area, Piercey quotes Marshall as saying, "The complainant asserts she was too drunk to remember. If she did consent, then she did not give evidence of whether that consent was induced. It would be unjust to suggest to the jury that they can infer inducement in these circumstances, based upon the evidence at trial, particularly when the complainant cannot recall what happened."
Piercey says that without evidence of inducement, Marshall was correct in not instructing the jury on that issue.
He quotes an Ontario Court of Appeal decision that says, "The mere existence of a relationship of trust, power or authority is insufficient to vitiate {remove} consent to sexual activity."
'A stupid idiot … but not a criminal'
And Piercey will remind the Court of Appeal that Snelgrove's testimony is that the complainant initiated the sex.
At the trial, Piercey told the jury that Snelgrove "was a stupid idiot who made a bad decision, but not a criminal decision."
The Crown wants the Court of Appeal to order a new trial, while Piercey says the not-guilty verdict should stand.
Snelgrove is still suspended from the force without pay as his case goes through the court system.
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