R. v. Mesman, (1990) 85 Nfld. & P.E.I.R. 291 (NFPC)

• Judge: LeBlanc, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: July 25, 1990
• Jurisdiction: Newfoundland and Labrador
• Citations: (1990), 85 Nfld. & P.E.I.R. 291 (NFPC)

R. v. Mesman (1990), 85 Nfld. & P.E.I.R. 291 (NFPC);

    266 A.P.R. 291

MLB headnote and full text

Her Majesty The Queen (Crown) v. Martin Mesman (defendant)

Indexed As: R. v. Mesman

Newfoundland Provincial Court

District of Menihek

LeBlanc, P.C.J.

July 25, 1990.

Summary:

The accused was charged with sexual assault of a female child about four years previously when she was seven or eight years old.

The Newfoundland Provincial Court acquitted the accused.

Criminal Law - Topic 675

Sexual offences, public morals and disorderly conduct - Sexual offences - Rape or sexual assault - Evidence - After an 11 year old girl viewed movies about sexual abuse at school, she complained that the accused sexually assaulted her four years previously - Both the complainant and the accused had difficulty recalling details of the incident and gave confused testimony - The Newfoundland Provincial Court stated that although the complainant's testimony was more credible than the accused's, that was not the only element to be considered - The accused was acquitted where the Crown did not prove its case beyond a reasonable doubt.

Criminal Law - Topic 4271

Procedure - Indictment - Amendment - Circumstances permitting - Section 601(4.1) of the Criminal Code provided the variance between a count and evidence was not material respecting the time of the alleged offence provided the indictment was preferred within the limitation period, if any - The 11 year old complainant remembered an earlier incident after viewing movies about abuse - The accused was charged with sexual assault alleged to have occurred in 1987 - All parties agreed the incident occurred in 1986 - The Newfoundland Provincial Court amended the information under s. 601(3)(b) - See paragraph 1.

Cases Noticed:

Miller v. Minister of Pensions, [1947] 2 All E.R. 372, refd to. [para. 15].

R. v. Sears, 90 C.C.C. 159, refd to. [para. 16].

R. v. Collins (1989), 74 Nfld. & P.E.I.R. 76; 231 A.P.R. 76, refd to. [para. 17].

R. v. Harper, [1982] 1 S.C.R. 2; 40 N.R. 255, refd to. [para. 19].

R. v. Chase, [1987] 2 S.C.R. 293; 80 N.R. 247; 82 N.B.R.(2d) 229; 208 A.P.R. 229; 59 C.R.(3d) 193, refd to. [para. 20].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 271(1)(a), sect. 601(3)(b), sect. 601(4.1) [para. 1].

Criminal Code, R.S.C. 1970, c. C-36, sect. 246.1(1)(a) [para. 1].

Counsel:

David King, for the Crown;

Arthur Miller, for the defence.

This case was heard before LeBlanc, P.C.J., of the Newfoundland Provincial Court, District of Menihek, who delivered the following judgment on July 25, 1990.