R. v. R.A., 2024 BCCA 283
[2] In August 1978, the respondent was babysitting the complainant and other children at his home. In a statement made to the police, he explained that he was masturbating in the bathroom when he saw the then five‑year‑old complainant standing at the door. She asked what he was doing. He said “I’m making ice cream”. He then asked the complainant if she wanted to lick the ice cream. This is his description of the incident:
… as soon as it touched her … I pulled away, looked at her face and she [had] some stuff on her. I wiped it off and I said to, “kay you, you have to leave now and um, you can’t tell anybody ‘cause will get in trouble”. And she left, and I threw up in the toilet. Um, I can’t remember what I thought. It was something to the effect, “what the hell did you do?”
[3] When asked by the interviewing police officer what happened after that, he explained: “Then she put her mouth on it … and backed away. And when I saw that on her face, I got quite upset… and uh, you heard the rest … I wiped it off her”.
[9] In my opinion, with respect, the trial judge erred in concluding there was no direct application of force by the respondent to the complainant and in treating this case as if the complainant had not been touched. I say that for two reasons: first, by any definition of assault, even the narrow conception adopted in English cases following Fairclough (a judgment discussed in further detail below), the respondent touched the complainant in a manner constituting an assault. Second, I would expressly reject that narrow conception and adopt the view 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, and thus meets the definition of assault contained in s. 244(a) of the Criminal Code, regardless of whose physical movement initiated the contact.
[40] As the Supreme Court noted in R.V., the requirement that there be intentional application of force for an assault to have occurred is satisfied by touching, however slight. In my opinion, such touching can consist of any intentional contact by an adult with the body of a child, regardless of whose physical movement initiates it. The analysis should not turn upon “who touched whom”.
[41] In an annotation to Baney, Alan D. Gold dismisses a distinction based on the physics of the contact as meaningless and artificial. He writes:
The act-invitation distinction seems a mechanical, almost physicist’s view of the meaning of “force”: it differentiates between a force moving from the accused against the victim and one moving the other way, and it is based on the assumption that the impact, or threatened impact necessary to constitute an assault or battery, must be occasioned by the movement of some matter against or towards the victim. Besides being untenable on purely philosophical grounds as a rather artificial distinction (and even as a matter of physics it ignores that Newtonian Law which decrees that “for every action there is an equal and opposite reaction”), it is also contrary to those authorities holding that a battery may be committed where the impact is occasioned by the movement of the victim himself against some stationary matter, providing that the accused has intentionally caused the impact.
See Alan D. Gold, Commentary to R. v. Baney, available at 1971 CarswellOnt 41 (WL).
[42] The respondent nevertheless contends that for an assault to occur there must be some positive act on the part of the accused which is more than a mere invitation to touch his person. He says if indecent assault is defined as broadly as the Crown suggests then a sleeping adult who has their genitalia touched by a child will be found to have had sexual contact with a child, and will potentially be criminally liable. He says, on the Crown’s view of the law, no act is required, which amounts to an absurdity. In my view, this is a straw man. No one suggests that a passive adult who does not initiate and intentionally participate in sexual contact will be found to have committed an indecent assault. Moreover, for there to be an assault under the Criminal Code, the application of force must be “intentional”. The respondent does not explain how the requisite mens rea would be established in his hypothetical. The nightmare scenario assumes away the volition that is morally blameworthy.
[43] In my opinion, the jurisprudence supports the proposition that any intentional physical contact with a child may constitute an assault. Applying that interpretation of the law to the uncontroverted evidence in this case, there can be no doubt that the respondent assaulted the complainant under s. 244(a) of the Criminal Code, as it existed at the time of the offence. In suggesting the complainant touch him, the respondent precipitated contact of a sexual nature with the five‑year‑old complainant. That contact constituted a serious violation of the complainant’s bodily integrity. The fact that it was the complainant who moved towards the respondent, and not the other way around, is irrelevant at law.
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