Warning: This story contains disturbing details.
The Court of Appeal for British Columbia has overturned the acquittal of a man charged with indecent assault in a case dating back to 1978 that was heard in Surrey provincial court last year.
The higher court ordered a conviction and for a sentencing hearing to be held. The man's name has not been released on account of a publication ban on information that could identify the victim.
The Crown appealed the lower court decision.
The appeal court heard that the man had been babysitting a five-year-old girl and other children in his home.
"In a statement made to the police, he explained that he was masturbating in the bathroom when he saw the then five‑year‑old complainant standing at the door. She asked what he was doing. He said 'I’m making ice cream.' He then asked the complainant if she wanted to lick the ice cream," Justice Peter Willcock noted in his Aug. 7, 2024 reasons for judgment.
The man told police that "as soon as it touched her" he pulled away, wiped her face and told her she had to leave and not tell anyone.
"And she left, and I threw up in the toilet. Um, I can’t remember what I thought. It was something to the effect, 'what the hell did you do?'"
The Surrey judge acquitted him on the charge, which carries a sentence of up to five years on conviction, on the basis there had been no "assault" under the Criminal Code. The Crown submitted the judge erred, Willcock noted, by "misinterpreting the elements of assault and holding that the sexual touching had to be physically initiated by the accused."
But the appeal court affirmed that "any intentional contact on the part of an adult with a child committed in circumstances of a sexual nature meets the definition of assault, regardless of whose movement initiated the contact."
"Accordingly, I would set aside the acquittal, enter a conviction in its place and remit the respondent for sentencing," Willcock concluded, with Justices Susan Griffin and Peter Voith concurring.
