In R. v. Field, 2022 BCCA 197, the accused was convicted of the offence of sexual assault. The circumstances involved were described by the trial judge in the following manner:
Mr. Field was invited into the reception area of Ms. J.G.’s workplace. She, too, demanded that he leave, and he did not do so. Mr. Field made comments about masturbation, demanded the removal of clothing, and moved towards her. In the course of the action, Ms. J.G. was pushed to the chair. He then turned and left. The events occurred very quickly.
On appeal, the accused argued that because “there was no evidence of direct sexual touching, the absence of any demonstration by the appellant of power and control over J.G. must lead to an acquittal. Quite simply, he says that the surrounding circumstances were not indicative of sexualized violence, control or confinement, and that the circumstances as found by the judge, objectively construed, could not amount to a violation of J.G.’s sexual integrity” (at paragraph 13).
The appeal was dismissed and the conviction affirmed.
The British Columbia Court of Appeal concluded that though the exercise of control may be relevant, it is not an element of the offence (at paragraphs 34 and 39):
First, and contrary to the appellant’s submission, I do not accept that the Chase test must be modified in any way where there is an absence of evidence of actual sexual touching. Indeed, as explained in Chase and applied in Edgar, the test is contextual as it requires “all the circumstances” to be examined to determine if “the impugned conduct has the requisite sexual nature”.
The courts in the three cases above all considered sexual assault to be inherently an act of power, aggression and control, and the fact that this was the motive behind the sexual touching in V.(K.B.) and Nicolaou permitted a finding that these were indeed sexual assaults. The fact that a person exercises power and control over another may well be relevant to the determination of whether an act constitutes sexual assault. However, neither case stands for the proposition that the exercise of power and control is necessary for a finding of sexual assault, whether there has been direct sexual contact or not. As stated in Edgar, “a threat to invade the bodily or sexual integrity of another person or to otherwise apply force is itself a hostile act”: at para. 16.These cases certainly do not stand for the proposition that where there is no physical sexual contact, there must instead be some physical manifestation of the power, aggression and control (which is already inherent in an act of sexual assault), regardless of the other circumstances of the interaction.
