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Criminal - Sexual Offences - General. R. v. V. K.
In R. v. V. K. (Ont CA, 2024) the Ontario Court of Appeal dismissed a defendant's criminal appeal, this of being "found guilty by a jury on three counts of sexual assault".
Here the court notes that "whether conduct is of a sexual nature is objective":[20] The test to determine whether conduct is of a sexual nature is objective. The question to ask is: “viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?”: R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, at para. 11.
[21] The appellant argues that because M.D. conceded that she did not view what the appellant did as sexual in nature, it was not reasonable for the jury to view it that way. However, M.D.’s impressions are not determinative. It is important to place her testimony in its proper context, most notably the successful similar fact application, which permitted the jury to use the similarities across the counts when considering whether the unwanted massages were of a sexual nature. M.D.’s testimony that the appellant would massage her against her wishes while they were alone in the restaurant, when considered together with the evidence relating to the other counts, meant that it was open to the jury to find that the touching was sexual.
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