R. v. Boone (C.), (1988) 73 Nfld. & P.E.I.R. 141 (NFPC)

• Judge: Fowler, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: November 09, 1988
• Jurisdiction: Newfoundland and Labrador
• Citations: (1988), 73 Nfld. & P.E.I.R. 141 (NFPC)

R. v. Boone (C.) (1988), 73 Nfld. & P.E.I.R. 141 (NFPC);

    229 A.P.R. 141

MLB headnote and full text

Her Majesty the Queen v. Cyril Boone

Indexed As: R. v. Boone (C.)

Newfoundland Provincial Court

Fowler, P.C.J.

November 9, 1988.

Summary:

The accused school teacher was charged with sexual assault under s. 246.1(1) of the Criminal Code. A female student claimed that he had placed a hand on her shoulder, then moved it to her left breast. The incident happened near the end of a class period while he was assisting her with school work. The accused denied the incident.

The Newfoundland Provincial Court dismissed the charge. The court first held that to touch a student's breast, in the absence of a logical explanation, would be to come within the scope of "sexual" assault. The court then went on to consider the incident through the eyes of an objective observer. After finding no evidence of either motive or intent, nothing extraordinary in either the situation itself or the conversation; and after noting the inconsistencies in the witness's testimony, the court held that the evidence fell far short of the "beyond a reasonable doubt" standard.

Criminal Law - Topic 665

Sexual offences, public morals and disorderly conduct - Sexual offences - Rape or sexual assault - General - A school teacher was charged with sexual assault under s. 246.1(1) of the Criminal Code - The student claimed that while the teacher was assisting her with school work, he placed a hand on her shoulder and then moved it to her left breast - The Newfoundland Provincial Court dismissed the charge, but held that in the absence of an obvious explanation, the touching of a student's breast by a teacher was a "sexual assault" since it was clearly a "[violation] of the person in a sexual context" - See paragraph 19.

Cases Noticed:

R. v. Chase (1987), 80 N.R. 247; 82 N.B.R.(2d) 229; 208 A.P.R. 229; 59 C.R.(3d) 193, appld. [para. 9].

R. v. Taylor (1985), 59 A.R. 179; 44 C.R.(3d) 263, refd to. [para. 10].

Statutes Noticed:

Canada Evidence Act - see Evidence Act.

Evidence Act, R.S.C. 1970, c. E-10, generally [para. 31].

Criminal Code, R.S.C. 1970, c. C-34, sect. 244(1) [para. 6]; sect. 244(2) [para. 7]; sect. 246.1(1) [paras. 1, 4].

Canadian Charter of Rights and Freedoms 1982, sect. 11(d) [para. 27].

Authors and Works Noticed:

Usprich, S.J., A New Crime in Old Bottles: Definitional Problems with Sexual Assault (1987), 29 Cr.L.Q., 200, 204 [para. 11].

Counsel:

K. Healey, for the Crown;

D. Eaton, for the defence.

The following judgment was delivered on November 9, 1988, by Fowler, P.C.J., for the Provincial Court of Newfoundland: