R. v. Anderson, (1979) 2 Man.R.(2d) 86 (CA)

• Judge: Monnin, O'Sullivan and Huband, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: November 27, 1979
• Jurisdiction: Manitoba
• Citations: (1979), 2 Man.R.(2d) 86 (CA)

R. v. Anderson (1979), 2 Man.R.(2d) 86 (CA)

MLB headnote and full text

R. v. Anderson

Indexed As: R. v. Anderson

Manitoba Court of Appeal

Monnin, O'Sullivan and Huband, JJ.A.

November 27, 1979.

Summary:

This case arose out of charges against the accused of rape, buggery and attempting to choke a woman. The woman, with whom the accused previously had a relationship, accompanied him to his apartment, where he committed rape and buggery of her, attempting to choke her to overcome her resistance. The accused was convicted of all three offences and was sentenced to consecutive terms of imprisonment of two years for rape, one year for buggery and one year for choking. The accused appealed from conviction and sentence.

The Manitoba Court of Appeal dismissed the appeal from conviction, for rape and buggery, but set aside the conviction for choking and ordered that the sentences for rape and buggery run concurrently, because they arose out of the same incident. The conviction for choking was set aside, because only the more serious rape conviction should be entered, where both offences arose out of a single delict - see paragraphs 4 to 14.

Monnin, J.A., dissenting in part, was of the opinion that the sentences for rape and buggery should run consecutively - see paragraph 3.

Criminal Law - Topic 78

Res judicata - Where offences are of different degrees of gravity - The accused attempted to choke a woman in committing rape and buggery with her - The accused was convicted of rape, buggery and attempting to choke - The Manitoba Court of Appeal set aside the conviction for attempting to choke, because only a conviction for the more serious offence of rape should stand where both offences arose out of a single delict - See paragraphs 9 to 10.

Criminal Law - Topic 5802

Sentencing - Concurrent sentences - The accused was convicted of rape and buggery of a woman - The Manitoba Court of Appeal held that the sentences for the two offences should run concurrently, because both offences occurred during a single episode - See paragraphs 13 to 14.

Criminal Law - Topic 5852

Sentence - Rape - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 143 - The accused committed rape and buggery on a woman with whom he had previous relationship - The woman accompanied the accused to his apartment, where the offence occurred, and he attempted to choke her during the offence - She was not physically harmed - The Manitoba Court of Appeal affirmed a sentence of the accused of two years imprisonment for rape to run concurrently with a one year sentence of buggery - See paragraphs 3 and 11 to 14.

Criminal Law - Topic 5918

Sentence - Buggery - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 155 - The accused committed rape and buggery on a woman with whom he had previous relationship - The woman accompanied the accused to his apartment, where the offence occurred, and he attempted to choke her during the offence - She was not physically harmed - The Manitoba Court of Appeal affirmed a sentence of the accused of one year imprisonment for buggery to run concurrently with a two year sentence for rape - See paragraphs 3 and 11 to 14.

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322; 15 C.C.C.(2d) 524; 44 D.L.R.(3d) 451; 26 C.R.N.S. 1, appld. [para. 9].

Counsel:

J.G. Dangerfield, for the respondent;

H.E. Wolch, for the accused/appellant.

This case was heard on November 16, 1979, at Winnipeg, Manitoba, before MONNIN, O'SULLIVAN and HUBAND, JJ.A., of the Manitoba Court of Appeal.

On November 27, 1979, the judgment of the Court of Appeal was delivered and the following opinions were filed:

MONNIN, J.A., dissenting in part - see paragraphs 1 to 3;

HUBAND, J.A. - see paragraphs 4 to 14.

O'SULLIVAN, J.A., concurred with HUBAND, J.A.