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CRIMINAL CODE OFFENCES - Sexual offences - Assaults

Monday, September 09, 2019 @ 9:42 AM  


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Appeal by the Crown from the respondent’s acquittal of sexual assault, indecent assault, sexual interference, and sexual exploitation against young girls. The offences allegedly occurred between 1971 and 1993. The respondent, a violin teacher, allegedly required his young female students to undo their blouses and remove their bras. He touched their breasts and measured from the top of the collarbone to the nipple. On occasion, he asked the students to play the violin while disrobed. To a large extent, the respondent acknowledged his conduct, but testified that he was motivated by a desire to ensure that his students had properly fitting shoulder rests for the violin. The trial judge found that the touching was not for a sexual purpose and acquitted the respondent of all charges including those for which sexual purpose was not an essential element.

HELD: Appeal allowed in part. The acquittals on the sexual assault and indecent assault charges were set aside and convictions were entered. Sexual purpose was not a required element for sexual assault or its predecessor indecent assault. It was open to the trial judge to accept the evidence of the respondent that the touching was not for a sexual purpose. The judge was bound to acquit the respondent of the sexual interference and sexual exploitation charges, because sexual purpose was an essential element of both offences. The trial judge erred in law by relying exclusively on that finding to acquit the respondent of the sexual assault and indecent assault charges. Indecent assault and sexual assault were general intent offences that did not require proof of sexual purpose or sexual gratification on the part of the accused. The trial judge erred in law by determining that the respondent’s lack of sexual purpose was determinative of the sexual assault and indecent assault charges. He confused the sexual purpose of the respondent with the sexual nature of the conduct. Sexual purpose was not an essential element of either of these offences. A reasonable observer viewing the respondent’s admitted conduct in touching and manipulating the breasts and nipples of young girls and young women both over and under their clothes would perceive a sexual context to the conduct. The sexual integrity of the complainants was violated by the respondent’s conduct.

R. v. Trachy, [2019] O.J. No. 3867, Ontario Court of Appeal, D.H. Doherty, M.L. Benotto and G. Huscroft JJ.A., July 23, 2019. Digest No. TLD-September92019003