R. v. Graham and Hewitt, (1977) 3 A.R. 303 (CA)

• Judge: Clement, Lieberman and Morrow, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: April 12, 1977
• Citations: (1977), 3 A.R. 303 (CA)

R. v. Graham (1977), 3 A.R. 303 (CA)

MLB headnote and full text

R. v. Graham and Hewitt

Indexed As: R. v. Graham and Hewitt

Alberta Supreme Court

Appellate Division

Clement, Lieberman and Morrow, JJ.A.

April 12, 1977.

Summary:

This case arose out of a charge against the two accused of performing in an immoral, indecent or obscene performance contrary to s. 163(2) of the Criminal Code of Canada, R.S.C. 1970, c. C-34. The performance took place in a night club and consisted of erotic dancing between the two male accused and simulated sexual acts between them. The accused were charged and convicted on summary conviction and were found guilty on their appeal by way of trial de novo to the Alberta District Court. The accused appealed.

The Alberta Court of Appeal dismissed the appeal and affirmed the convictions of the accused. The Court of Appeal held that it was the function of the judge as the trier of fact to determine if the performance was obscene within the meaning of s. 163(2). The Court of Appeal held that there was no need to call evidence on prevailing community standards - see paragraphs 10 to 17.

Criminal Law - Topic 714

Corruption of morals - Obscene performances - The accused were charged with performing in an immoral, indecent or obscene performance contrary to s. 163(2) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 - The Alberta Court of Appeal held that it was the function of the judge as the trier of fact to determine if the performance was obscene within the meaning of s. 163(2) - The Court of Appeal held that there was no need to call evidence on prevailing community standards - The Court of Appeal held that the definition of obscenity in s. 159(8) of the Criminal Code respecting obscene publications was inapplicable to the meaning of obscene in s. 163(2) - See paragraphs 10 to 17.

Criminal Law - Topic 7265

Summary conviction proceedings - In formations - Defects and objections - Prejudice resulting from information - The accused were charged with performing in an immoral, indecent or obscene performance contrary to s. 163(2) of the Criminal Code of Canada - The accused on appeal from conviction objected that the charge was duplicitous - The Alberta Court of Appeal held that, even if the information was duplicitous, the accused were not misled or prejudiced thereby - See paragraph 3.

Criminal Law - Topic 7268

Summary conviction proceedings - In formations - Defects and objections - Time for objections - The accused objected for the first time on appeal that the information against them was duplicitous - The Alberta Court of Appeal held that it was too late to object to the information on appeal - See paragraphs 1 to 3.

Evidence - Topic 4608

Witnesses - Examination of witnesses - Questions calling for conclusions - The accused were charged with performing in an obscene performance contrary to s. 163(2) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 - Three of the accuseds' witnesses, who had seen the performance, were asked whether they found the performance obscene - The Alberta Court of Appeal held that the question was improper, because it was the very question which the judge was to decide - See paragraph 16.

Cases Noticed:

R. v. Johnson (1973), 13 C.C.C.(2d) 402, appld. [para. 2].

R. v. Schultz (1962), 38 C.R. 76, folld. [para. 2].

R. v. Dillon (1964), 43 C.R. 259, folld. [para. 2].

R. v. City of Sioux Ste. Marie (1977), 13 O.R.(2d) 113, refd to. [para. 2].

R. v. Dwyer (1977), 3 A.R. 96, appld. [para. 10].

R. v. Ariadne Developments Ltd. et al. (1974), 19 C.C.C.(2d) 49, folld. [para. 11].

R. v. Close, [1948] V.L.R. 445, appld. [para. 12].

R. v. Rubin et al., [1962] S.C.R. 681, refd to. [para. 12].

R. v. Great West News et al. (1970), 10 C.R.N.S. 42, consd. [para. 12].

R. v. Provincial News Co. et al., [1974] 6 W.W.R. 137, reviewed 3 N.R. 492; 20 C.C.C.(2d) 385 (S.C.C.), refd to. [para. 13].

R. v. Small et al., [1973] 4 W.W.R. 563, consd. [para. 14].

R. v. Clark (1975), 5 N.R. 599, appld. [para. 16].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 159(8) [para. 10]; sect. 163(2) [para. 1]; sect. 170 [para. 11].

Authors and Works Noticed:

Webster's Third New International Dictionary [para. 10].

Counsel:

J. Doz, for the appellants;

J. Watson, for the Crown.

This case was heard before CLEMENT, LIEBERMAN and MORROW, JJ.A., of the Alberta Supreme Court, Appellate Division.

On April 12, 1977, CLEMENT, J.A., delivered the following judgment of the Appellate Division: