Roger P. Thirkell

The appellant was charged with the historical offence of indecent assault arising from an incident in which a five-year-old complainant touched the accused's penis at his invitation after witnessing him masturbate.

The trial judge acquitted the appellant on the basis that while the element of indecency was established, there was no assault because the accused had not directly and intentionally applied force to the complainant.

The Court of Appeal for British Columbia set aside the acquittal and entered a conviction, holding that the trial judge erred by misinterpreting the intentional application of force requirement.

On further appeal, the Supreme Court unanimously dismissed the appeal, holding that when an adult intentionally precipitates sexual contact with a child, the elements of sexual assault are satisfied regardless of whose physical movement initiates the contact.

The Court declined to follow the English authority of Fairclough v. Whipp, finding it not authoritative in Canada.

The Crown appealed a majority decision of the Court of Appeal for British Columbia that ordered a new trial for an accused convicted of sexual assault and sexual interference.

The Court of Appeal majority found the trial judge erred in the jury charge regarding the indictment, in responding to the jury's question during deliberations, and in failing to provide further credibility instructions.

The Supreme Court of Canada allowed the appeal substantially for the reasons of the dissenting judge, finding the trial judge's charge and response to the jury's question were adequate.

Three additional issues raised by the respondent for the first time at the Supreme Court — character evidence limiting instruction, prior consistent statements, and interpretation of 'single transaction' under s. 581(1) of the Criminal Code — were addressed but did not require a new trial.

Convictions for sexual assault restored and judicial stay on sexual interference count maintained.