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.
