R. v. R.A.

Unanimous Judgment Read By — Wagner C.J.

1The Chief Justice — This appeal comes to us as of right from the Court of Appeal for British Columbia. The issue before us is whether the Court of Appeal erred in setting aside the appellant’s acquittal on the charge of indecent assault and entering a conviction. The appellant argues that the Court of Appeal wrongly concluded that the trial judge erred in holding that the appellant’s conduct did not constitute an assault.

2We are all of the opinion that the appeal should be dismissed, substantially for the reasons found at paras. 17 to 43 of the Court of Appeal’s decision.

3In our view, when an adult intentionally precipitates sexual contact with a child, it satisfies the elements of sexual assault under s. 271 of the Criminal Code, R.S.C. 1985, c. C‑46 (formerly ss. 149 and 244 of the Criminal Code, R.S.C. 1970, c. C‑34): see R. v. R.V., 2021 SCC 10, [2021] 1 S.C.R. 131, at para. 52.

4Contrary to the appellant’s assertion, the element of force can be satisfied in the circumstances of this case where the child complainant physically initiates the touching of the accused: see R. v. Tyler, 2015 ONCA 599, at para. 10; R. v. K.D.M., 2017 ONCA 510, at para. 36. Such an interpretation gives effect to the broad, encompassing language of the provision and its purpose of safeguarding the bodily and sexual integrity of children: see also R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 154.

5The trial judge therefore erred in relying on the reasoning of Fairclough v. Whipp, [1951] 2 All E.R. 834 (K.B.D.), to hold that the appellant’s actions, which are not in dispute, did not constitute an assault. Fairclough is not authoritative in Canada. The appellant committed an assault when he intentionally had sexual contact with the child complainant. It did not matter that the child complainant physically initiated the contact following the appellant’s invitation.

6Accordingly, the appeal is dismissed and the conviction is affirmed.