R. v. G.B. et al. (No. 3), (1990) 111 N.R. 62 (SCC)

• Judge: Wilson, L'Heureux-Dubé, Gonthier, Cory and McLachlin, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 29, 1989
• Jurisdiction: Canada (Federal)
• Citations: (1990), 111 N.R. 62 (SCC);111 NR 62;[1990] ACS no 57;JE 90-946;[1990] 2 SCR 57;1990 CanLII 115 (SCC);86 Sask R 142;56 CCC (3d) 181;[1990] SCJ No 57 (QL);77 CR (3d) 370;[1990] CarswellSask 21

R. v. G.B. (1990), 111 N.R. 62 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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G.B., C.S., H.H., S.S. and A.B. v. Her Majesty The Queen

(Nos. 20905, 20919, 20931, 20932 and 20933)

Indexed As: R. v. G.B. et al. (No. 3)

Supreme Court of Canada

Wilson, L'Heureux-Dubé, Gonthier, Cory and McLachlin, JJ.

June 7, 1990.

Summary:

Six young offenders were charged in separate informations with a number of sexual assaults on younger children at a school. Not all of the young offenders were involved in all of the alleged assaults, but the charges were proceeded with at the same time. By agreement of counsel the evidence was applied to each of the young offenders involved in the incidents. The young offenders were all acquitted by the Saskatchewan Provincial Court. The Crown appealed.

The Saskatchewan Court of Appeal, in a decision reported 65 Sask.R. 134, allowed the appeal and ordered new trials for all the young offenders. All but one of the youths appealed as of right pursuant to s. 27 of the Young Offenders Act and s. 618(2)(a) of the Criminal Code. The appeals were consolidated.

The Supreme Court of Canada dealt with the appeals in three separate judgments. The following decision dealt with five of the young offenders (G.B., C.S., H.H., S.S. and A.B.). The issue on appeal concerned the jurisdiction of the appellate court in overturning the acquittals and ordering a new trial.

The Supreme Court of Canada dismissed the appeal. See also the two previous cases in this volume.

Criminal Law - Topic 4860

Appeals - Indictable offences - Grounds of appeal - Question of law alone - Under s. 605(1)(a) of the Criminal Code, the Crown is confined on an appeal from an acquittal, to an appeal on a question of law alone - The Supreme Court of Canada (per Wilson, J.), stated that the narrower ground for appeal from an acquittal as opposed to an appeal from a conviction reflected the fundamental principle that an accused is presumed innocent until proven guilty by proof beyond a reasonable doubt - See paragraph 20.

Criminal Law - Topic 4860

Appeals - Indictable offences - Grounds of appeal - Question of law alone - Under s. 605(1)(a) of the Criminal Code, the Crown may appeal an acquittal on a question of law alone - The Supreme Court of Canada (per Wilson, J.), held that an appellate court cannot overturn an acquittal because it was unreasonable or unsupported by the evidence - On an appeal from an acquittal as opposed to an appeal from conviction an appellate tribunal exceeds its jurisdiction if it attempts to reassess the facts in order to determine whether the trial judge's findings were reasonable - The court set out numerous examples of what constituted a "question of law alone" - The court held that a judge's misapprehension of the evidence was an error of law alone under s. 605(1)(a) if it was the result of misdirection - See paragraphs 27 to 38.

Criminal Law - Topic 4950

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - General - [See second Criminal Law - Topic 4860].

Criminal Law - Topic 4975

Appeals - Indictable offences - Powers of court of appeal - Appeal from an acquittal - [See second Criminal Law - Topic 4860].

Criminal Law - Topic 5020

Appeals - Indictable offences - Setting aside verdicts - Verdict unreasonable or unsupported by evidence - [See second Criminal Law - Topic 4860].

Criminal Law - Topic 5463

Evidence - Witnesses - Evidence of children - Corroboration - Several young offenders were charged with sexual assault - The Crown called the young complainant, now age nine, and a co-accused/accomplice who had previously pleaded guilty - The Supreme Court of Canada affirmed that the trial judge erred in examining the evidence of each in isolation and in failing to consider their evidence as a whole - He failed to appreciate the significance of the accomplice's evidence insofar as it was capable of corroborating the complainant's - This constituted serious misdirection - See paragraphs 39 to 41.

Criminal Law - Topic 5520

Evidence - Witnesses - Evidence of accomplices and co-defendants - Testimony of convicted accomplice - [See Criminal Law - Topic 5463].

Evidence - Topic 5233

Witnesses - Corroboration - Evidence of children - Corroboration - What constitutes - [See Criminal Law - Topic 5463].

Cases Noticed:

R. v. G.B. et al. (No. 1) (1990), 111 N.R. 1, refd to. [para. 1].

R. v. G.B. et al. (No. 2) (1990), 111 N.R. 31, refd to. [para. 1].

Kendall v. The Queen, [1962] S.C.R. 469, refd to. [para. 11].

R. v. Hamilton-Middleton (1986), 53 Sask.R. 80, refd to. [para. 13].

R. v. Harper, [1982] 1 S.C.R. 2; 40 N.R. 255, consd. [para. 14].

Sunbeam Corporation (Canada) Ltd. v. The Queen, [1969] S.C.R. 221, consd. [para. 20].

Lampard v. The Queen, [1969] S.C.R. 373, consd. [para. 23].

R. v. Schuldt, [1985] 2 S.C.R. 592; 63 N.R. 241; 38 Man.R.(2d) 257, consd. [para. 24].

Wild v. The Queen, [1971] S.C.R. 101, consd. [para. 24].

R. v. Dixon (1988), 26 B.C.L.R.(2d) 251, refd to. [para. 27].

Belyea and Weinraub v. The King, [1932] S.C.R. 279, consd. [para. 29].

R. v. Roman and Alonso (1987), 66 Nfld. & P.E.I.R. 319; 204 A.P.R. 319; 38 C.C.C.(3d) 385, consd. [para. 34].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, consd. [para. 36].

Chamberlain v. The Queen, [1984] 58 A.L.J.R. 133, refd to. [para. 41].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 605(1)(a) [paras. 9, 20, 27, 35]; sect. 613(4) [para. 10].

Criminal Code, R.S.C. 1985, c. C-46, sect. 676(1)(a) [paras. 9, 20, 27, 35]; sect. 686(4) [para. 10].

Authors and Works Noticed:

Ewaschuk, Criminal Pleadings and Practice in Canada (2nd Ed. 1987), paras. 23:1010, 23:1025 [para. 30].

Counsel:

Donna Taylor, Merv Ozirny and Wayne Rusnak, for the appellants;

Kenneth W. MacKay, Q.C., for the respondent.

Solicitors of Record:

Rusnak, Balacko, Kachur & Rusnak, Yorkton, Saskatchewan, for the appellant, G.B.;

Ozirny, Fisher & Bell, Melville, Saskatchewan, for the appellants, C.S., H.H. and S.S.;

Kyba, Yaholnitsky & Taylor, Yorkton, Saskatchewan, for the appellant, A.B.;

Attorney General for the Province of Saskatchewan, for the respondent.

This appeal was heard before Wilson, L'Heureux-Dubé, Gonthier, Cory and McLachlin, JJ., of the Supreme Court of Canada, on November 29, 1989. The decision of the Supreme Court was delivered on June 7, 1990, in both official languages, when the following opinions were filed:

Wilson, J. (L'Heureux-Dubé and Cory, JJ., concurring) - see paragraphs 1 to 43;

McLachlin, J. (Gonthier, J., concurring) - see paragraphs 44 to 51.