Her Majesty the Queen v. Trachy
[Indexed as: R. v. Trachy]
2019 ONCA 622
Court of Appeal for Ontario, Doherty, Benotto and Huscroft JJ.A.
July 23, 2019
Criminal law — Sexual offences — Accused requiring his young female
violin students to remove their bras and touching their breasts while
measuring from collarbone to nipple — Accused charged with sexual
interference, sexual exploitation, sexual assault and indecent assault —
Accused testifying that he was motivated solely by desire to ensure that
students had properly fitted shoulder rest for violin — Trial judge
acquitting accused on all counts on basis that touching was not for sexual
purpose — Crown’s appeal allowed in part — Sexual purpose not required
element of sexual assault or indecent assault — Trial judge conflating
issue of touching for sexual purpose with that of touching in circumstances of sexual nature — Trial judge failing to consider whether
complainants’ sexual integrity was violated by accused’s touching of
their breasts — Acquittals for sexual assault and indecent assault
quashed and convictions entered.
The accused, a violin teacher, was charged with sexual assault, indecent assault,
sexual interference and sexual exploitation. He required his young female students
to undo their blouses and remove their bras, 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. The accused did not deny that the touching
occurred but testified that he was motivated solely by a desire to ensure that the
students had properly fitted shoulder rests for their violin. The trial judge found
that the touching was not for a sexual purpose and acquitted the accused on all
counts. The Crown appealed.
Held, the appeal should be allowed in part.
While a sexual purpose is a required element of sexual interference and sexual
exploitation, it is not a required element of sexual assault or indecent assault.
Indecent assault and sexual assault are assaults committed in circumstances of an
indecent or sexual nature such that the sexual integrity of the victim is violated.
They are general intent offences that do not require proof of sexual purpose or
sexual gratification on the part of the accused. The trial judge conflated the issue
of touching for a sexual purpose with that of touching in circumstances of a sexual
nature. He failed to consider whether the complainants’ sexual integrity was
violated by the accused’s touching of their breasts. A reasonable observer viewing
the accused’s admitted conduct in touching and manipulating the breasts of young
women would perceive a sexual context to the conduct. The acquittals on the sexual
assault and indecent assault charges were quashed, and convictions entered.
The acquittals on the charges of sexual interference and sexual exploitation were
R. v. Chase,  2 S.C.R. 293,  S.C.J. No. 57, 45 D.L.R. (4th) 98, 80 N.R.
247, J.E. 87-1095, 82 N.B.R. (2d) 229, 37 C.C.C. (3d) 97, 59 C.R. (3d) 193, 3 W.C.B.
(2d) 75, 1987 CCAN ¶10,024; R. v. Lutoslawski,  3 S.C.R. 60,  S.C.J.
No. 49, 2010 SCC 49, 326 D.L.R. (4th) 635, 408 N.R. 138,  2 W. W.R. 383, 269
O.A.C. 44, 262 C.C.C. (3d) 1, 91 W.C.B. (2d) 160; R. v. Marshall,  O.J. No.
5409, 2017 ONCA 801, consd