The Crown in Newfoundland has filed a notice to appeal the acquittal of a police officer accused of sexually assaulting an intoxicated young woman, saying the trial judge made errors in law regarding consent.
Last month, a jury found Const. Doug Snelgrove of the Royal Newfoundland Constabulary not guilty, but the Crown now says the judge failed to properly instruct the jury on the meaning of consent.
Court heard that after a night of drinking in downtown St. John's, the woman approached the uniformed officer's parked police cruiser in December 2014 and asked for a ride home, later saying she thought it would be safer than taking a cab.
During Snelgrove's trial, the woman testified the night ended with her passing out — then waking up as the constable was having sex with her. The woman, then 21, testified she could not remember if she had consented to sex.
The Crown argued the 10-year veteran of the police force took advantage of a vulnerable woman. But Snelgrove testified he had the woman's consent, and he insisted she did not appear drunk.
Snelgrove's acquittal on Feb. 24 became a flashpoint for public outrage about "rape culture" and the issue of consent.
The decision to launch an appeal in that case came a day after the Crown in Nova Scotia announced it will appeal the acquittal of a Halifax cab driver accused of sexually assaulting a woman found intoxicated, unconscious and partially naked in his taxi.
Nova Scotia's Public Prosecution Service made the announcement shortly before 300 people gathered at Halifax City Hall Tuesday to protest the judge's decision, some of them saying the issue of consent was bungled in the case.
Under the Criminal Code, it is unlawful to have sex with someone who is incapable of consent. The problem is that the law does not define what incapable means.
The Supreme Court of Canada has said anyone who is unconscious is incapable of granting consent. However, there have been many lower court decisions that have concluded that being intoxicated is not enough to constitute incapacity. There is no clear line within that range.
The courts have also ruled that the federal law requires ongoing, conscious consent to ensure that women and men are not the victims of sexual exploitation, and to provide that individuals engaging in sex are always able to ask their partners to stop at any point.
Iain Hollett, acting senior Crown attorney for the special prosecutions office in St. John's, said the grounds for the Snelgrove appeal suggest the trial judge erred in her interpretation of the section of the Criminal Code that deals with consent being induced by the exercise of power, authority or trust.
As well, Hollett said the Crown will argue the judge erred in law by refusing to instruct the Snelgrove jury in accordance with that section, and by failing to properly instruct the jury on the meaning of consent.
The case in Newfoundland also led to protests. On Feb. 27, about 200 demonstrators held a rally outside police headquarters in St. John's, where some called for the law on sexual assault to be changed. Demonstrators chanted "Fire his ass," and held signs saying "Justice Now" and "I believe her."
Snelgrove, 39, has been suspended without pay since July 2015 and still faces a disciplinary process that could include dismissal.