R. v. G.G., (1995) 80 O.A.C. 12 (CA)

• Judge: Osborne, Doherty and Laskin, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 14, 1995
• Jurisdiction: Ontario
• Citations: (1995), 80 O.A.C. 12 (CA);1995 CanLII 8922 (ON CA);97 CCC (3d) 362;80 OAC 12

R. v. G.G. (1995), 80 O.A.C. 12 (CA)

MLB headnote and full text

Her Majesty The Queen (respondent) v. G.G. (appellant)

(C17770)

Indexed As: R. v. G.G.

Ontario Court of Appeal

Osborne, Doherty and Laskin, JJ.A.

March 14, 1995.

Summary:

The accused was convicted of sexual assault, sexual interference and assault re­specting his five year old daughter and was sentenced to four years' imprisonment. The accused appealed against conviction and sentence.

The Ontario Court of Appeal allowed the conviction appeal and ordered a new trial. The trial judge misapprehended the expert evidence, failed to appreciate the signifi­cance of the absence of physical evidence of abuse and erroneously concluded that factors he relied on supported the daughter's allega­tions.

Criminal Law - Topic 4852

Appeals - Indictable offences - Grounds of appeal - Miscarriage of justice - The Ontario Court of Appeal stated that "errors in the apprehension or appreciation of evidence, even though not errors of law and not leading to a finding that the ver­dict was unreasonable, may nonetheless call for appellate review [and a new trial] because they result in a miscarriage of justice" - An accused whose conviction rested on fact findings tainted by error was denied a fair trial, which constituted a miscarriage of justice - A trial judge misapprehended expert evidence, failed to appreciate the significance of the absence of certain physical evidence and erro­neously concluded that factors relied on supported a complainant's allegations - The court stated that even if the errors were not "errors of law", they were errors on findings central to the trial judge's determination of guilt and tainted the trial judge's findings and reasons for convicting - It would be a miscarriage of justice to allow the conviction to stand - See para­graphs 72 to 75.

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence -[See Criminal Law - Topic 4957 ].

Criminal Law - Topic 4957

Appeals - Indictable offences - New trials - Grounds - Misapprehension of evidence - The accused was convicted of sexual offences respecting his five year old daughter - The Ontario Court of Appeal ordered a new trial, where the trial judge (1) misapprehended expert evidence on sexual abuse; (2) failed to appreciate the significance of the absence of physical evidence of abuse; and (3) erroneously concluded that factors relied on supported the daughter's allegations, when in fact they did not - The court stated that it was an error of law to rely on certain evidence as confirming the daughter's allegations, where the evidence was not capable of being confirmatory - Even if the three errors were not "errors of law", the court would still order a new trial on the basis of miscarriage of justice where the errors were on findings central to the trial judge's determination of guilt.

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397; 3 C.R.(4th) 302, refd to. [para. 40].

R. v. A.W.M. (1993), 62 O.A.C. 312; 21 C.R.(4th) 106 (C.A.), refd to. [para. 42].

R. v. G.B. et al. (No. 1), [1990] 2 S.C.R. 3; 111 N.R. 1; 86 Sask.R. 81; 56 C.C.C.(3d) 161; 77 C.R.(3d) 347, refd to. [para. 42].

R. v. G.B. et al. (No. 3), [1990] 2 S.C.R. 57; 111 N.R. 62; 86 Sask.R. 142; 77 C.R.(3d) 370; 56 C.C.C.(3d) 181, refd to. [para. 61].

R. v. Hubin, [1927] S.C.R. 442, refd to. [para. 61].

R. v. Parnerkar, [1974] S.C.R. 449, refd to. [para. 61].

R. v. Morgentaler, [1976] 1 S.C.R. 616; 4 N.R. 277; 20 C.C.C.(2d) 449, refd to. [para. 61].

R. v. Squire, [1977] 2 S.C.R. 13; 10 N.R. 25, refd to. [para. 61].

R. v. Haughton (D.) (1995), 179 N.R. 1; 79 O.A.C. 319; 93 C.C.C.(3d) 99 (S.C.C.), refd to. [para. 62].

R. v. MacDonald, [1977] 2 S.C.R. 665; 9 N.R. 271; 29 C.C.C.(2d) 257, refd to. [para. 64].

R. v. Harper, [1982] 1 S.C.R. 2; 40 N.R. 255; 133 D.L.R.(3d) 546; 65 C.C.C.(2d) 193, refd to. [para. 65].

R. v. Morin (K.M.), [1992] 3 S.C.R. 286; 142 N.R. 141; 131 A.R. 81; 25 W.A.C. 81; 76 C.C.C.(3d) 193, refd to. [para. 69].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161; 89 C.C.C.(3d) 193, refd to. [para. 69].

R. v. Roman and Alonso (1987), 66 Nfld. & P.E.I.R. 319; 204 A.P.R. 319; 38 C.C.C.(3d) 385 (Nfld. C.A.), revd. [1989] 1 S.C.R. 230; 92 N.R. 322; 73 Nfld. & P.E.I.R. 148; 229 A.P.R. 148; 46 C.C.C.(3d) 321, refd to. [para. 69].

R. v. R.C., [1993] 2 S.C.R. 226; 153 N.R. 241; 55 Q.A.C. 63; 81 C.C.C.(3d) 428, refd to. [para. 73].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161 (C.A.), refd to. [para. 73].

R. v. Stewart (1991), 43 O.A.C. 109; 62 C.C.C.(3d) 289 (C.A.), refd to. [para. 74].

R. v. Fanjoy, [1985] 2 S.C.R. 233; 62 N.R. 253; 11 O.A.C. 381; 21 C.C.C.(3d) 312, refd to. [para. 74].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(a), sect. 686(1)(b)(iii) [para. 59].

Authors and Works Noticed:

Sopinka and Gelowitz, The Conduct of An Appeal (1993), pp. 85 to 89 [para. 70].

Counsel:

David F. O'Connor, for the appellant;

Anthony K. Graburn, for the respondent.

This appeal was heard on September 8, 1994, before Osborne, Doherty and Laskin, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court of Appeal was delivered by Laskin, J.A., and released on March 14, 1995.