Supreme Court of Canada Hearings

In 1978, the appellant, R.A., was babysitting the then five-year-old complainant at his home. In a statement made to the police, he explained that he asked the complainant to touch him and she did so. The appellant was charged with one count of indecently assaulting the complainant contrary to s. 149 of the Criminal Code, R.S.C. 1970, c. C-34. Following a trial in the Provincial Court, the appellant was acquitted on the basis that there had been no “assault” under the Criminal Code. There had been no direct, intentional application of force to the complainant and no attempt or threat by an act or gesture to apply force to the complainant.On appeal, the Crown submitted that the trial judge erred by misinterpreting the elements of assault and holding that the sexual touching had to be physically initiated by the accused. The Court of Appeal unanimously allowed the appeal and set aside the acquittal. It concluded that the appellant touched the complainant in a manner constituting an assault and that any intentional contact with a child by an adult that is committed in circumstances of a sexual nature constitutes a direct and intentional application of force by the adult to the child’s person, regardless of whose physical movement initiated the contact. Considering that the only issue was whether the appellant’s conduct amounted to an assault and that the question had been answered in the affirmative, the court entered a conviction for indecent assault and remitted the matter to the Provincial Court for the appellant to be sentenced.

Argued Date

2025-03-20

Keywords

Criminal law — Indecent assault — Elements of offence — Intentional application of force — Did the Court of Appeal for British Columbia err in holding that in order to ground the offence of indecent assault in 1978, the element of assault did not require the intentional application of force by an accused? — Criminal Code, R.S.C. 1970, c. C-34, s. 149.

Notes

(British Columbia) (Criminal) (As of Right) (Publication ban in case)

Language

English Audio

Disclaimers

This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).