R. v. J.D.G., (2001) 151 B.C.A.C. 281 (CA)

• Judge: Ryan, Donald and Huddart, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 15, 2000
• Jurisdiction: British Columbia
• Citations: (2001), 151 B.C.A.C. 281 (CA);2001 BCCA 4

R. v. J.D.G. (2001), 151 B.C.A.C. 281 (CA);

    249 W.A.C. 281

MLB headnote and full text

Temp. Cite: [2001] B.C.A.C. TBEd. MY.009

Regina (respondent) v. J.D.G. (appellant)

(CA026044; 2001 BCCA 4)

Indexed As: R. v. J.D.G.

British Columbia Court of Appeal

Ryan, Donald and Huddart, JJ.A.

March 22, 2001.

Summary:

The accused was charged with sexual assault causing bodily harm and sexual touching respecting his niece in 1991. The accused applied to stay the proceedings on the ground that his Charter rights were denied.

The British Columbia Supreme Court, in a decision reported in 20 B.C.T.C. 150, dis­missed the application.

The British Columbia Supreme Court, in a decision reported at [1999] B.C.T.C. Uned. 671, convicted the accused of sexual assault and acquitted him of sexual touching. The accused appealed from conviction.

The British Columbia Court of Appeal allowed the appeal and ordered a new trial.

Editor's Note: For other cases involving this accused, see 17 B.C.T.C. 220 and 18 B.C.T.C. 24.

Criminal Law - Topic 4957.1

Appeals - Indictable offences - New trials - Grounds - Failure to consider evidence - The accused was charged with sexual offences respecting his niece - The Crown's theory was that the child's attacker assaulted her with his penis - The central issue was the attacker's identity - The presence of genital warts in the child's anal region, without evidence that she had any other sexual contact, plus the Crown's evidence that the accused had that condi­tion, was powerful circumstantial evidence that the accused was the attacker - The accused led evidence that he never suf­fered from that condition - The trial judge found the accused's evidence "less than objective" - He said nothing about genital warts - The British Columbia Court of Appeal ordered a new trial where the judge failed to consider the conflicting evidence.

Cases Noticed:

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92, refd to. [para. 3].

R. v. Hughes (A.), [1998] B.C.T.C. Uned. F58 (S.C.), refd to. [para. 20].

R. v. D.R., H.R. and D.W., [1996] 2 S.C.R. 291; 197 N.R. 321; 144 Sask.R. 81; 124 W.A.C. 81; 107 C.C.C.(3d) 289, refd to. [para. 21].

Counsel:

Jeffrey R. Ray, for the appellant;

W.J. Scott Bell, for the respondent.

This appeal was heard before Ryan, Donald and Huddart, JJ.A., of the British Columbia Court of Appeal, at Vancouver, British Columbia, on November 15, 2000. The decision of the court was delivered on March 22, 2001, by Donald, J.A.