COURT OF APPEAL FOR ONTARIO

DATE: 20001101

DOCKET: C34170

RE: HER MAJESTY THE QUEEN (Appellant) v. A. Z. (A Young Offender) (Respondent)

BEFORE: OSBORNE A.C.J.O., DOHERTY and LASKIN JJ.A.

COUNSEL: Amy Alyea

for the appellant

No one appearing

for the respondent

HEARD: October 26, 2000

On appeal from the order of Madam Justice N. Jane Wilson dated April 3, 2000.

E N D O R S E M E N T

[1] The respondent, who was thirteen years old, was charged with sexual assault (s. 271(1)), an invitation to touch for sexual purpose (s. 152). Both charges arose out of a single incident involving a seven year old complainant. It was alleged that the respondent took the complainant to a secluded area and induced her to perform fellatio by promising her some gum. It was not alleged that the respondent used any physical violence or made any threats against the complainant.

[2] Section 150.1(3) of the Criminal Code provides that where a person under 14 is charged with an offence under s. 152, the Crown must, in addition to the elements of the offence set out in s. 152, prove one of various relationships between the complainant and the accused set out in s. 150.1(3). The section reads:

No person aged twelve or thirteen years shall be tried for an offence under section 151 or 152 or subsection 173(2) unless the person is in a position of trust or authority towards the complainant or is a person with whom the complainant is in a relationship of dependency.

[3] The Crown conceded at the end of its case that it could not establish any of the relationships referred to in s. 150.1(3). The respondent was acquitted on the charge of invitation to touch for a sexual purpose (s. 152) and there is no appeal from that acquittal.

[4] The trial judge also granted a directed verdict on the sexual assault charge. The Crown does appeal from that verdict. In directing the acquittal, the trial judge said:

This is a situation where there was no force or threat of same used by the accused in so far as fellatio is concerned. Clearly, the appropriate offences here are under Section 151 and 152 of the Code. Parliament has decided that perpetrators aged 12 and 13 are not to be tried for such offences. Accordingly, the accused’s motion for a directed verdict is successful.

[5] The trial judge erred in holding that s. 150.1(3) limited the circumstances in which an accused under the age of 14 could be prosecuted for sexual assault. That subsection, unlike others in s. 150.1, makes no reference to the crime of sexual assault.

[6] The “force” required for an assault may be no more than a touching of the person of the complainant in circumstances which interfere with the bodily integrity of the complainant. In the context of the definition of assault, “force” does not necessarily connote some minimum level of violence or any animus towards the complainant by the perpetrator: R. v. Burden (1981), 1981 355 (BC CA), 64 C.C.C. (2d) 68 (B.C.C.A.); R. v. Cadden (1989), 1989 2847 (BC CA), 48 C.C.C. (3d) 122 (B.C.C.A.). A friendly but unwanted kiss may be an assault.

[7] Parliament’s decision to define the essential elements of one crime (s. 152) somewhat differently for accused persons under age 14 is no reason to modify the definition of assault as applied to a different offence (sexual assault).

[8] The Crown’s evidence established that the respondent took the seven year old complainant to a secluded area and induced her to perform fellatio. That act involved a touching of the complainant by the respondent and an interference with her bodily integrity. Given the complainant’s age, consent was irrelevant. There was, therefore, evidence that the respondent applied “force” to the complainant and thereby assaulted her. The trial judge erred in law in granting a directed verdict on the sexual assault charge.

[9] The appeal is allowed, the acquittal is quashed, and a new trial is ordered.

“C.A. Osborne A.C.J.O.”

“Doherty J.A.”

“John Laskin J.A.”