Iain R. W. Hollett

A police officer was acquitted by jury of sexual assault.

The Court of Appeal set aside the acquittal and ordered a new trial, finding the trial judge erred by refusing to instruct the jury on s. 273.1(2)(c) of the Criminal Code, 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.

The Supreme Court dismissed the appeal, holding that an instruction under s. 273.1(2)(c) was warranted on the facts, as it was open to the jury to conclude the accused used his position of trust and the complainant's intoxicated and vulnerable state to secure her apparent consent to sexual activity.

In a criminal appeal from acquittals on assault and sexual assault charges, the Court addressed trial errors involving prior sexual activity cross-examination and exclusion of rebuttal evidence on alleged recent fabrication.

The intermediate appellate court was divided on remedy despite finding error.

The Court allowed the appeal and adopted the dissenting remedial approach from below.

The acquittals were set aside and a new trial was ordered on all counts.