R. v. G., (1980) 3 Man.R.(2d) 245 (CA)

• Judge: Freedman, C.J.M., Monnin and O'Sullivan, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: May 15, 1980
• Jurisdiction: Manitoba
• Citations: (1980), 3 Man.R.(2d) 245 (CA)

R. v. G. (1980), 3 Man.R.(2d) 245 (CA)

MLB headnote and full text

R. v. G.

Indexed As: R. v. G.

Manitoba Court of Appeal

Freedman, C.J.M., Monnin and O'Sullivan, JJ.A.

May 15, 1980.

Summary:

This case arose out of charges against the accused of buggery, gross indecency and indecent assault on a male, his nephew. The complainant testified that from 1972 to 1977 the accused committed various sexual acts with him regularly. The estranged wife of the accused testified about a homosexual incident between the accused and a hitch-hiker in 1977.

The Manitoba County Court in a judgment reported at 1 Man.R.(2d) 256 convicted the accused on the three charges. The accused appealed.

On appeal, the Crown conceded that the conviction for indecent assault could not stand.

The Manitoba Court of Appeal dismissed the appeal from the convictions for buggery and gross indecency. The Court of Appeal held that, although the trial judge erred in admitting the evidence of the wife of the accused, the admissible evidence against the accused was overwhelming - see paragraphs 1 to 9.

O'Sullivan, J.A., dissenting, would have allowed the appeal, set aside the convictions and ordered a new trial.

Criminal Law - Topic 5039

Appeals - Indictable offences - Dismissal of appeal if error resulted in no miscarriage of justice - Effect of error by trial judge - General - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 613(1)(b)(iii) - A trial judge convicted the accused of criminal offences after admitting evidence of similar acts - The Manitoba Court of Appeal held that the evidence of similar acts was inadmissible, but dismissed the accused's appeal on the ground that without the inadmissible evidence, the evidence against the accused was overwhelming - See paragraphs 6 to 9.

Evidence - Topic 1256

Relevant facts - Relevance and materiality - Similar acts - To prove criminal conduct - The complainant boy testified that the accused, his uncle, committed sexual acts with him regularly from 1972 to 1977 - The estranged wife of the accused testified about a homosexual incident between the accused and a hitch-hiker in 1977 - The trial judge held that the evidence of the wife was admissible as similar fact evidence showing the propensity of the accused to commit the acts and to rebut a probable defence of innocent association - The Manitoba Court of Appeal held that the wife's evidence was inadmissible - See paragraphs 4, 14 and 19.

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 613(1)(b)(iii).

Counsel:

L.C. Greenberg, Q.C., for the accused/appellant;

J.G. Dangerfield, Q.C., for the respondent.

This case was heard on March 12, 1980, at Winnipeg, Manitoba, before FREEDMAN, C.J.M., MONNIN and O'SULLIVAN, JJ.A., of the Manitoba Court of Appeal.

On May 15, 1980, the judgment of the Court of Appeal was delivered and the following opinions were filed:

MONNIN, J.A. - See paragraphs 1 to 9;

O'SULLIVAN, J.A., dissenting - See paragraphs 10 to 22;

FREEDMAN, C.J.M., concurred with MONNIN, J.A.