R. v. G.B. et al. (No. 2), (1990) 86 Sask.R. 111 (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), 86 Sask.R. 111 (SCC)

R. v. G.B. (1990), 86 Sask.R. 111 (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., A.B. and C.S. v. Her Majesty The Queen

(Nos. 20905, 20919 and 20931)

Indexed As: R. v. G.B. et al. (No. 2)

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 three incidents.

The Saskatchewan Provincial Court acquitted all the youths. The Crown appealed.

The Saskatchewan Court of Appeal 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 case dealt with three of the young offenders (G.B., A.B. and C.S.). The main issue on appeal was whether the trial judge erred in refusing to amend the information and whether time was an essential element of the offence as charged.

The Supreme Court of Canada dismissed the appeal.

See also 86 Sask.R. 81 and 86 Sask.R. 142 in this volume.

Criminal Law - Topic 670.1

Sexual offences - Sexual assault - Elements of - Three young offenders were charged with committing a sexual assault on a younger child, seven years old, between December 2 and 20, 1985 - The Supreme Court of Canada held that the information was adequate, although evidence placed the timing of the offence differently - The court held that in this case, time was not an essential element of the offence or crucial to the defence - The court stated that the date of the offence is generally not an essential element of sexual assault - See paragraphs 29, 45 to 46.

Criminal Law - Topic 4730

Procedure - Information or indictment - Charge or count - Indictable of fences - Form and content - General - The Supreme Court of Canada stated that generally an information or indictment must provide an accused with enough information to enable him or her to defend the charge - See paragraph 20.

Criminal Law - Topic 4731

Procedure - Information or indictment - Charge or count - Indictable of fences - Form and content - Date and description of offence - The Supreme Court of Canada stated that the usual practice in alleging the time of the offence is to state the day on which, or a particular time period during which, the offence was committed - The court held that what constitutes reasonable or adequate information with respect to the act or omission to be proven against the accused will of necessity vary from case to case - In general an information or indictment will not be quashed just because the exact time of the offence is not specified - Particularity respecting the exact time of the offence is usually not necessary to enable the accused to make full answer and defence - See paragraphs 24, 28.

Criminal Law - Topic 4731

Procedure - Information or indictment - Charge or count - Indictable of fences - Form and content - Date and description of offence - [See Criminal Law - Topic 670.1 ].

Criminal Law - Topic 4731

Procedure - Information or indictment - Charge or count - Indictable of fences - Form and content - Date and description of offence - The Supreme Court of Canada held that it is of no consequence if the date specified in the information differs from that arising from the evidence, unless the time of the offence is critical and the accused may be misled by the variance and therefore prejudiced in his or her defence - The date of the offence need not be proven in order for a conviction to result unless time is an essential element of the offence - The court referred to cases where time was an essential element - The court summarized the conclusions drawn from the authorities - See paragraphs 29 to 46.

Criminal Law - Topic 5461

Evidence - Witnesses - Evidence of children - General - The Supreme Court of Canada commented that the judiciary should take a common sense approach when dealing with the testimony of young children and that the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children - See paragraphs 17, 48.

Criminal Law - Topic 5463

Evidence - Witnesses - Evidence of children - Corroboration - Several young offenders were charged with sexually assaulting younger children at school - An appellate judge discussed the possibility of expert testimony corroborating the young complainant's testimony - He stated that expert evidence showing the psychological and physical conditions which frequently arise from sexual abuse of a child, was admissible - The Supreme Court of Canada agreed with the conclusion that expert evidence in this case was admissible and that in cases of sexual assault against children the opinion of an expert often proves invaluable - See paragraphs 16, 49.

Evidence - Topic 5233

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

Evidence - Topic 7052

Opinion evidence - Expert evidence - Particular matters - Child abuse - [See Criminal Law - Topic 5463 ].

Evidence - Topic 7157

Opinion evidence - Prohibited opinions - Re credibility of accused - Corroboration of children's evidence - [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. 3) (1990), 111 N.R. 62, refd to. [para. 1].

Kendall v. The Queen, [1962] S.C.R. 469, refd to. [para. 9].

R. v. Hamilton-Middleton (1986), 53 Sask.R. 80, consd. [para. 11].

Brodie v. The King, [1936] S.C.R. 188, refd to. [para. 20].

R. v. Côté, [1978] 1 S.C.R. 8; 13 N.R. 271, consd. [para. 22].

R. v. Wis Developments Corporation Limited, Shatto, Riley and Shatto, [1984] 1 S.C.R. 485; 53 N.R. 134; 53 A.R. 58, refd to. [para. 23].

R. v. Colgan (1986), 43 Man.R.(2d) 101; 30 C.C.C.(3d) 183, affd. [1987] 2 S.C.R. 686; 79 N.R. 350; 50 Man.R.(2d) 128, consd. [para. 25].

R. v. R.I.C. (1986), 17 O.A.C. 354; 32 C.C.C.(3d) 399, consd. [para. 27].

R. v. Ryan and Charbonneau (1985), 12 O.A.C. 172; 23 C.C.C.(3d) 1, refd to. [para. 27].

R. v. Fox (1986), 24 C.C.C.(3d) 366 (B.C.C.A.), leave to appeal refused [1986] 1 S.C.R. ix; 69 N.R. 78, refd to. [para. 27].

Veronneau v. The King (1916), 26 C.C.C. 278 (Que. K.B.), affd. (1916), 54 S.C.R. 7, consd. [para. 31].

R. v. Dossi (1918), 13 Cr. App. R. 158, consd. [para. 32].

R. v. James (1923), 17 Cr. App. R. 116, refd to. [para. 33].

R. v. England (1920), 35 C.C.C. 141 (N.B. C.A.), refd to. [para. 33].

R. v. Ball (1953), 17 C.R. 244 (Ont. C.A.), consd. [para. 33].

R. v. Hindle (1955), 113 C.C.C. 388 (Ont. C.A.), consd. [para. 33].

R. v. Greene (1962), 133 C.C.C. 294 (Ont. C.A.), consd. [para. 35].

R. v. Nadin (1971), 3 C.C.C.(2d) 221 (B.C.C.A.), refd to. [para. 36].

R. v. Pawliw (1973), 13 C.C.C.(2d) 356 (Sask. C.A.), refd to. [para. 36].

R. v. Clark (1974), 19 C.C.C.(2d) 445 (Alta. C.A.), refd to. [para. 36].

R. v. W. Eric Whebby Ltd. (1974), 8 N.S.R.(2d) 251; 26 C.R.N.S. 379, refd to. [para. 36].

R. v. Labine (1975), 23 C.C.C.(2d) 567 (Ont. C.A.), refd to. [para. 36].

R. v. McCrae and Ramsay (1981), 25 Man.R.(2d) 32 (Co. Ct.), consd. [para. 36].

R. v. Sarson (1982), 15 Man.R.(2d) 192 (Co. Ct.), refd to. [para. 36].

R. v. Parkin (1), (2) (1922), 37 C.C.C. 35 (Man. C.A.), consd. [para. 41].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 529(1) [para. 19]; sect. 529(4.1) [paras. 8, 30].

Criminal Code, R.S.C. 1985, c. C-46, sect. 601(1) [para. 19]; sect. 601(4.1) [paras. 8, 30].

Criminal Code, S.C. 1985, c. 19, sect. 123(3) [para. 8].

Authors and Works Noticed:

Archbold's Pleading, Evidence and Practice in Criminal Cases (23rd Ed. 1905), p. 297 [para. 31].

Ewaschuk, Criminal Pleadings and Practice in Canada (2nd Ed. 1987), para. 9:10050 [para. 37].

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.;

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

Ozirny, Fisher & Bell, Melville, Saskatchewan, for the appellant, C.S.;

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 by Wilson, J.