On November 8, 2011 Christopher Edgar forced his way into a woman’s apartment. He put her in a chokehold. He ordered her not to scream. Once he had forced his way in, he locked the door and released the complainant. He started ranting about a police chase and drugs. Edgar was red and sweaty; possibly high - he paced angrily and erratically between the complainant and her front door while making telephone calls. The complainant was terrified. She asked if she could smoke cigarettes and drink tea on the balcony. Edgar allowed it. The balcony was the only place, aside from her front door, where the complainant could possibly go.

When first on the balcony, Edgar told the complainant that before he left, they had to have an agreement – but first, he needed her to come inside and watch him masturbate. The complainant complied. She sat on the couch near Edgar while he masturbated by putting his hands down his pants. He did not expose his penis or touch the complainant. After a few minutes, Edgar asked the complainant when her husband was going to be home. She told him soon.

By this point, Edgar had been in the complainant’s apartment for about an hour. The complainant’s terror had mounted. In fear of being raped or killed, she ran out on the balcony, and dove over the railing. She fell 12 feet to the ground, and broke both of her ankles. She screamed for help and tried to run away [@ paras 5-6].

Edgar was found guilty after trial of sexual assault. On appeal, he argued that because there was no overt interference with the complainant’s sexual or bodily integrity, the trial judge erred in convicting him.

The Court of Appeal did not agree: 2016 ONCA 120. To commit a sexual assault, it was not necessary for Edgar to have touched or even verbally threatened the complainant. A person’s act or gesture, without words, force or any physical contact, can constitute a threat to apply force of a sexual nature, if it intentionally creates in another person an apprehension of imminent harm or offensive contact that affronts the person’s sexual integrity. Coupled with a present ability to carry out the threat, this conduct can amount to a sexual assault [see R v Cadden (1989) 48 CCC (3d) 122 (BCCA) and R v Johnson, 2006 CanLII 37519 SCJ)].

The Court of Appeal rejected giving Cadden and Johnson a narrow interpretation that required overt acts combined with verbal demands made of the victims. Rather, the Court found that Edgar’s act of masturbation was elevated from an indecent act to a sexual assault because of the surrounding circumstances of sexualized violence, control, and confinement that he created, and to which he deliberately subjected the complainant. The Court of Appeal held that it was those same types of circumstances that informed the decisions in both Cadden and Johnson [@ paras 12-15].

Further, the Court went on to emphasize, as was done in Cadden, that sexual assault is “an act of power, aggression and control, and that a threat to invade the bodily or sexual integrity of another person or to otherwise apply force is itself a hostile act” [@ para 16]. In this case, Edgar had intentionally terrorized the complainant for a prolonged period, in violent and sexualized circumstances, causing her to reasonably believe that he had the present ability to rape or kill her [@ para 16].

The Appeal was dismissed. Viewed in the context of the entire circumstances, Edgar’s acts indeed constituted a sexual assault [@ para 17].

Comment

Sexual assault prosecutions are difficult prosecutions for complex reasons. It is an area of criminal law that faces a myriad of legal nuances and engrained biases that are absent from other types of criminalized conduct. The Court of Appeal’s comments in Edgar highlights that the focus in sexual assault cases is largely centred on the integrity and subjective experiences of the complainant, and in this case, the surrounding circumstances which inform those experiences. The sexual integrity of the complainant is a paramount consideration, and the intent is only general. The Court’s reasons in Edgar are very clearly aligned, and properly so, with the Supreme Court’s decision R v Chase [1987] 2 SCR 293.