R. v. Lutoslawski, 2010 SCC 49, [2010] 3 S.C.R. 60

1Binnie J. — The only issue on this appeal is whether the Court of Appeal for Ontario erred in substituting a conviction instead of ordering a new trial on three counts of sexual assault. It was established in R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, that “[t]he test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: ‘Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?’” (p. 302). As found by the Court of Appeal, the trial judge misdirected himself on this question of law. Sexual assault does not require proof of an improper or ulterior purpose. The Crown at trial proved beyond a reasonable doubt that the touching of the complainants occurred in circumstances of a sexual nature such as to compromise the sexual integrity of the complainants. Section 686(4)(b)(ii) of the Criminal Code, R.S.C. 1985, c. C-46, permits an appellate court on appeal from a judge alone to “enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law”. Here the Crown established that an error of law was committed at trial, and that but for that error the appellant would necessarily have been convicted: R. v. Cassidy, 1989 CanLII 25 (SCC), [1989] 2 S.C.R. 345. Accordingly, despite the able submissions of Mr. Kapoor, we are all of the view that the Court of Appeal reached the proper conclusion. Accordingly, the appeal is dismissed.