Case information
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41421
R.A. v. His Majesty the King
(British Columbia) (Criminal) (As of Right)
(Publication ban in case)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2025-04-15 | Record returned to | |
| 2025-04-08 | Appeal closed | |
| 2025-04-03 | Transcript received, 42 pages | |
| 2025-03-26 | Formal judgment sent to the registrar of the court of appeal and all parties | |
| 2025-03-26 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2025-03-20 | General proceeding, (Letter Form), Sensitivity questionnaire | His Majesty the King |
| 2025-03-20 | General proceeding, (Letter Form), Sensitivity questionnaire | R.A. |
| 2025-03-20 |
Judgment on the appeal rendered, CJ Ka Côt Row Mar Kas Ja Ob Mor, The appeal from the judgment of the Court of Appeal for British Columbia (Vancouver), Number CA48917, 2024 BCCA 283, dated August 7, 2024, was heard on March 20, 2025 and the Court on that day delivered the following judgment orally: THE 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. We 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. In 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. Contrary 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. The 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. Accordingly, the appeal is dismissed and the conviction is affirmed. Dismissed |
|
| 2025-03-20 |
Hearing of the appeal, 2025-03-20, CJ Ka Côt Row Mar Kas Ja Ob Mor Decision rendered |
|
| 2025-03-18 | Certificate (on limitations to public access), (Letter Form), Form 23B, (Printed version filed on 2025-03-18) | His Majesty the King |
| 2025-03-18 | Respondent's condensed book, (Book Form), (Printed version filed on 2025-03-18) | His Majesty the King |
| 2025-02-21 | Notice of appearance, (Letter Form), Notice of appearance, (Letter Form), Troy Anderson, Michael Klein, K.C. and Roger Thirkell will appear before the court. Troy Anderson will be presenting oral arguments., (Printed version due on 2025-02-28) | R.A. |
| 2025-02-18 | Notice of appearance, (Letter Form), Mila Shah and Maegan Richards will appear before the court. Mila Shah will be presenting oral arguments. , (Printed version due on 2025-02-25) | His Majesty the King |
| 2025-01-03 | Certificate (on limitations to public access), (Letter Form), Form 23B, (Printed version filed on 2025-01-03) | His Majesty the King |
| 2025-01-03 | Certificate (on limitations to public access), (Letter Form), Form 23A, (Printed version filed on 2025-01-03) | His Majesty the King |
| 2025-01-03 | Respondent's book of authorities, (Book Form), Completed on: 2025-01-03, (Printed version filed on 2025-01-03) | His Majesty the King |
| 2025-01-03 | Respondent's factum, (Book Form), Completed on: 2025-01-03, (Printed version filed on 2025-01-03) | His Majesty the King |
| 2024-11-06 | Notice of hearing sent to parties | |
| 2024-11-06 |
Appeal hearing scheduled, 2025-03-20 Decision rendered |
|
| 2024-10-30 | Appellant's book of authorities, (Book Form), Completed on: 2024-10-31, (Printed version filed on 2024-11-06) | R.A. |
| 2024-10-30 | Certificate of counsel (attesting to record), (Letter Form), (Printed version filed on 2024-11-06) | R.A. |
| 2024-10-30 | Certificate (on limitations to public access), (Letter Form), Form 23B, (Printed version filed on 2024-11-06) | R.A. |
| 2024-10-30 | Appellant's record, (Book Form), PUB BAN, Completed on: 2024-10-31, (Printed version filed on 2024-11-06) | R.A. |
| 2024-10-30 | Appellant's factum, (Book Form), PUB BAN, Completed on: 2024-10-31, (Printed version filed on 2024-11-06) | R.A. |
| 2024-10-21 | Letter advising the parties of tentative hearing date and filing deadlines (Notice of appeal – As of right) | |
| 2024-09-06 | Letter acknowledging receipt of a notice of appeal, FILE OPENED | |
| 2024-09-05 | Certificate (on limitations to public access), (Letter Form), Form 23B, (Printed version filed on 2024-10-10) | R.A. |
| 2024-09-05 |
Certificate (on limitations to public access), (Letter Form), PUB BAN Form 23A, (Printed version filed on 2024-09-10) |
R.A. |
| 2024-09-05 | Notice of appeal, (Letter Form), PUBLICATION BAN, Completed on: 2024-09-06, (Printed version filed on 2024-10-10) | R.A. |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| R.A. | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| His Majesty the King | Respondent | Active |
Counsel
Party: R.A.
Counsel
Troy Anderson
Michael Klein, K.C.
108 – 2790 Gladwin Road
Abbotsford, British Columbia
V2T 4S7
Telephone: (604) 814-4147
Email: roger@thirkelllaw.ca
Agent
331 Somerset Street West
Ottawa, Ontario
K2P 0J8
Telephone: (613) 282-1712
FAX: (613) 288-2896
Email: msobkin@sympatico.ca
Party: His Majesty the King
Counsel
Criminal Appeals and Special Prosecutions
6th Floor, 865 Hornby Street
Vancouver, British Columbia
V6Z 2G3
Telephone: (604) 660-1126
FAX: (604) 660-1133
Email: mila.shah@gov.bc.ca
Agent
2600 – 160 Elgin Street
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-0211
FAX: (613) 563-9869
Email: matthew.estabrooks@gowlingwlg.com
Summary
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.<br>
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
(PUBLICATION BAN IN CASE)
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.
Lower court rulings
Provincial Court of British Columbia
247411-1
Acquittal entered for the charge of indecent assault.
Appeal allowed; acquittal set aside; conviction entered for one count of indecent assault; accused remitted for sentencing.
Memorandums of argument on application for leave to appeal
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Related links
Factums on appeal
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If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
Downloadable PDFs
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