R. v. Deol, Gill and Randev, (1981) 27 A.R. 510 (CA)

• Court: Court of Appeal (Alberta)
• Case Date: February 20, 1981
• Citations: (1981), 27 A.R. 510 (CA)

R. v. Deol (1981), 27 A.R. 510 (CA)

MLB headnote and full text

R. v. Deol, Gill and Randev

(Nos. 12762, 12753 and 12764)

Indexed As: R. v. Deol, Gill and Randev

Alberta Court of Appeal

Moir and Laycraft, JJ.A., Waite, J. (ad hoc)

February 20, 1981.

Summary:

This case arose from the convictions of three accused on rape charges and convictions of two of the accused of indecent assault. The accused were each sentenced to two years imprisonment less one day for rape. The two accused convicted of indecent assault were sentenced to six months imprisonment to be served concurrently with the rape sentences. The trial judge's decision is not reported in this series of reports. The accused appealed the convictions. The Alberta Court of Appeal dismissed the appeals.

Criminal Law - Topic 666

Sexual offences - Rape - Consent - The Alberta Court of Appeal stated that the Crown must prove the absence of consent beyond a reasonable doubt - See paragraph 21.

Criminal Law - Topic 666

Sexual offences - Rape - Consent - Two of three accused denied having sexual intercourse with the complainant - The third accused did not testify - The complainant was unconscious at the time of the alleged rape - The Alberta Court of Appeal stated that the defense of mistake of fact about consent on a charge of rape must be based on evidence of substance in the record, not from mere speculation and that the defence did not apply in the circumstances - See paragraphs 26 and 27.

Criminal Law - Topic 4470

Procedure - Verdicts - Included offences - Inclusion in sexual intercourse with a female under 14 years of age - The Alberta Court of Appeal stated that indecent assault is an included offence in a charge of sexual intercourse with a female under fourteen - See paragraphs 36 to 44.

Criminal Law - Topic 5522

Evidence and witnesses - Testimony of accomplices and co- defendants - Out of court statements by co-defendants - A judge sitting alone allowed into evidence an accused's statement, which incriminated a co-accused - The Alberta Court of Appeal stated that the trial judge properly admitted the statement for the purpose of determining the accused's credibility - See paragraphs 28 to 35.

Criminal Law - Topic 5852

Sentence - Rape - Three accused were convicted of raping a fifteen year old girl who lay unconscious in a motel room - The girl and three friends went to the motel with the three accused for a party - The girl consumed liquor for the first time - The trial judge sentenced each accused to two years less one day imprisonment - See paragraph 1.

Criminal Law - Topic 5856

Sentence - Indecent assault - Following a motel party two accused took two girls, aged thirteen and seventeen, out in their car - The two accused were convicted of indecently assaulting the thirteen year old - The trial judge sentenced each accused to six months imprisonment to be served concurrently with sentences of two years less one day imprisonment imposed on each accused for raping a fifteen year old girl at the motel party - See paragraph 1.

Evidence - Topic 5505

Witnesses - Competency and compellability - Time for objection - At trial, after the Crown closed its case, defence counsel objected to the competency of the Crown's witnesses because of their ages - The defence heard the witnesses at the preliminary inquiry and knew their ages - The Alberta Court of Appeal held that the objection was properly dismissed because it should have been made when the witnesses were presented to be sworn - See paragraphs 10 to 17.

Evidence - Topic 5556

Witnesses - Competency and compellability - Competency - Presumption of - The Alberta Court of Appeal stated that a presumption of competence regarding the understanding of the nature and quality of an oath arises if witnesses are at least fourteen years of age when their evidence is given - See paragraph 16.

Cases Noticed:

R. v. Juneau (1972), 16 C.R.N.S. 268 (Que.C.A.), folld. [paras. 3, 36].

Steinberg v. The King (1931), 56 C.C.C. 9 (Ont. C.A.), folld. [para. 13].

R. v. Harbuz, [1979] 2 W.W.R. 105, consd. [para. 15].

R. v. Antrobus, [1947] 1 W.W.R. 157 (B.C.C.A.), refd to. [para. 16].

R. v. Armstrong (1959), 29 W.W.R.(N.S.) 141 (B.C.C.A.), refd to. [para. 16].

R. v. Bannerman (1966), 55 W.W.R.(N.S.) 257, refd to. [para. 16].

R. v. Kendall (1962), 132 C.C.C. 216 (S.C.C.), consd. [para. 16].

R. v. Pappajohn (1980), 32 N.R. 104; 52 C.C.C.(2d) 481, folld. [para. 25].

R. v. McFall (1979), 27 N.R. 420; 100 D.L.R.(3d) 403 (S.C.C.), refd to. [para. 30].

R. v. Klippenstein (1981), 26 A.R. 568 (Alta. C.A.), refd to. [para. 30].

R. v. Stewart (1938), 71 C.C.C. 206, consd. [para. 41].

R. v. Quinton, 88 C.C.C. 231, refd to. [para. 42].

R. v. Beamish (1965), 45 C.R. 264 (N.S.C.A.), consd. [para. 43].

Fairclough v. Whipp (1951), 35 Cr. App. R. 138, folld. [para. 43].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 140 [para. 38]; sect. 146 [para. 37].

Counsel:

B.W. Duncan, for the Crown;

D.P. Maguire, for the appellant Deol;

A.W. MacDonald Sr., for the appellant Gill;

A.W. MacDonald Jr., for the appellant Randev.

This case was heard by MOIR AND LAYCRAFT, JJ.A., and WAITE, J. (ad hoc), of the Alberta Court of Appeal.

On February 20, 1981, LAYCRAFT, J.A., delivered the following judgment for the Court of Appeal.