R v B.J.T.

R. v. B.J.T.

2019 ONCA 694
Court of Appeal for Ontario — Feldman, Paciocco and Zarnett JJ.A. | September 6, 2019

Background

B.J.T., described by the trial judge as "a simple man" with limited reasoning abilities, was convicted of sexual interference and sexual assault after shaving his daughter's pubic hair on two occasions. The first incident occurred in 2011 when his 13-year-old daughter D.T. had a hygiene problem that caused her to be teased at school. She wanted to attend a dance and asked her mother to help, but her mother refused and suggested she ask her aunts. When her mother wasn't home, D.T. asked her father instead, and he agreed to shave her pubic hair using a razor and shaving cream in his bedroom.

Two years later in 2013, when D.T. was 15, she texted her father at work asking for the same help. During this second incident, B.J.T. not only shaved her pubic hair but also inserted his finger into her vagina (claiming it was to remove a hair) and made a comment about the size of her clitoris. The daughter experienced discomfort and told him she could have removed the hair herself. Both incidents came to light in 2014 when the daughter's boyfriend told her aunt about what had happened.

Issues

1. Did the trial judge err in finding that the shavings constituted sexual interference (touching for a sexual purpose)?
2. Did the trial judge err in finding that the shavings constituted sexual assault?
3. Was the mandatory minimum sentence for sexual interference unconstitutional?

The Sexual Purpose Problem

The Court of Appeal found a critical flaw in the trial judge's reasoning for the 2011 conviction. Sexual interference under section 151 of the Criminal Code requires proof that the accused touched the complainant for a sexual purpose — it's a specific intent offence. While the trial judge convicted B.J.T. on both incidents, his reasons never clearly explained how he found the required sexual purpose for the first incident.

In his reasons for conviction, the trial judge focused on an "objective standard" and stated that B.J.T. should not have shaved his daughter "even if he believed subjectively that he was providing and administering a necessary hygienic act." But that's wrong in law — you can't convict someone of sexual interference based purely on objective inappropriateness. The Crown must prove the accused actually intended the touching to be sexual, regardless of any other purpose they might have had.

For the 2013 incident, the evidence was much stronger: B.J.T. made sexual comments and inserted his finger into his daughter's vagina in a way the trial judge found "absurdly inappropriate." These actions provided clear evidence of sexual purpose.

The Mandatory Minimum Falls

The trial judge struck down the mandatory minimum sentence for sexual interference (which had increased from 45 days to one year) as cruel and unusual punishment under section 12 of the Charter. The Court of Appeal upheld this finding, noting that five other provincial appeal courts had reached the same conclusion. The offence can be committed in many different ways with vastly different levels of moral culpability, making a blanket one-year minimum grossly disproportionate in some cases.

Key Takeaway

Good intentions don't automatically make inappropriate touching legal, but the Crown must still prove the accused had a sexual purpose — objective inappropriateness alone isn't enough for sexual interference.

This case shows how crucial it is for trial judges to make clear findings on every element of an offence, especially the mental element. Even when conduct is clearly inappropriate and harmful, the prosecution must still prove each legal requirement beyond a reasonable doubt.