R. v. G.R., [2005] 2 S.C.R. 371, 2005 SCC 45, 2005 SCC 45 (2005)

Extract

---

R. v. G.R., [2005] 2 S.C.R. 371, 2005 SCC 45, 2005 SCC 45 (2005)

SUPREME COURT OF CANADA

Citation: R v. G.R., [2005] 2 S.C.R. 371, 2005 SCC 45

Date: 20050722

Docket: 30108

Between:

Her Majesty The Queen

Appellant v.

G.R.

Respondent

Coram: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

Reasons for Judgment:

(paras. 1 to 43)

Dissenting Reasons:

(paras. 44 to 70)

Binnie J. (McLachlin C.J. and Major, Fish and Charron JJ. concurring)

Abella J. (Bastarache, LeBel and Deschamps JJ. concurring)

______________________________

R v. G.R., [2005] 2 S.C.R. 371, 2005 SCC 45

Her Majesty The Queen Appellant v.

G.R. Respondent

Indexed as: R. v. G.R.

Neutral citation: 2005 SCC 45.

File No.: 30108.

2004: December 17; 2005: July 22.

Present: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

on appeal from the court of appeal for quebec

Criminal law - Incest - Included offences - Whether offences of sexual interference and sexual assault included in offence of incest - Criminal Code, R.S.C. 1985, c. C-46, s. 662.

R was charged with committing incest with his daughter. At trial, when asked by the trial judge whether R had put his penis into her vulva, the girl answered in the negative. Moreover, she could not say if R had tried to introduce his penis into her vulva because she could not see what he was doing. At the time of the alleged incest, the daughter was in fact between the ages of five and nine. The physical examination of the child as well as a sexual abuse profile revealed that there had been penetration although it could not be determined whether she had been penetrated by a finger, by a penis or by another object. R testified in his own defence and categorically denied having touched his daughter in a sexual manner. R was convicted of attempted incest. In the Court of Appeal, the Crown conceded that there was insufficient proof with respect to attempted incest, but argued that R should be convicted of sexual interference and sexual assault. The court acquitted R of attempted incest and held that sexual interference and sexual assault are not included offences of incest.

Held (Bastarache, LeBel, Deschamps and Abella JJ. dissenting): The appeal should be dismissed.

Per McLachlin C.J. and Major, Binnie, Fish and Charron JJ.: Since the same set of facts may give rise to different charges, it is fundamental to a fair trial that an accused know the charge or charges he or she must meet. The Crown did not allege that the daughter was below the age of consent, and there is nothing in the nature of the offence of incest as described in the Criminal Code or the wording of the indictment to put R on notice that he was in jeopardy of a conviction for sexual assault or sexual interference. The proper focus is on what the Crown alleges, not on what the accused already knows. An accused will often know a good deal mor...

See the full content of this document

If you are already a vLex customer, access here

---