R. v. Ramsay (F.J.), (2001) 203 Sask.R. 53 (CA)

• Judge: Bayda, C.J.S., Vancise and Sherstobitoff, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: November 13, 2000
• Jurisdiction: Saskatchewan
• Citations: (2001), 203 Sask.R. 53 (CA);2001 SKCA 8

R. v. Ramsay (F.J.) (2001), 203 Sask.R. 53 (CA);

    240 W.A.C. 53

MLB headnote and full text

Temp. Cite: [2001] Sask.R. TBEd. FE.060

Fred John (Jack) Ramsay (appellant) v. Her Majesty the Queen (respondent) (No. 84)

Her Majesty the Queen (appellant) v. Fred John (Jack) Ramsay (respondent)

(No. 96; 2001 SKCA 8)

Indexed As: R. v. Ramsay (F.J.)

Saskatchewan Court of Appeal

Bayda, C.J.S., Vancise and Sherstobitoff, JJ.A.

January 24, 2001.

Summary:

The accused was convicted of attempted rape. The alleged offence occurred in 1969 when the accused was a Royal Canadian Mounted Police officer and the complainant was a 14 year old girl. The accused appealed the conviction. The Crown conceded that the conviction could not stand because of errors in the jury charge respecting the presumption of innocence and reasonable doubt. The Crown contended that there should be a new trial. The accused argued that an acquittal should be entered because there was no evidence upon which a jury could find a lack of consent or an attempt at sexual inter­course where the complainant's evidence was that she did not resist and that intercourse had occurred.

The Saskatchewan Court of Appeal set aside the conviction and ordered a new trial on the charge of attempted rape.

Editor's Note: For previous decisions involv­ing this accused see 176 Sask.R. 130 and 193 Sask.R. 68.

Criminal Law - Topic 666

Sexual offences - Rape or sexual assault - Consent and extorted consent - The accused was convicted of attempted rape - The alleged offence occurred in 1969 when the accused was a Royal Canadian Mounted Police officer and the complain­ant was a 14 year old girl - The complain­ant's evidence was that she did not protest or resist the accused's advances because of his position of authority and his threat to tell her mother that she was not a virgin - The accused appealed the conviction - The Crown conceded that the conviction could not stand because of errors in the jury charge - The Crown contended that there should be a new trial - The accused argued that an acquittal should be entered because, inter alia, there was no evidence upon which a jury could find a lack of consent where the complainant's evidence was that she did not resist - The Saskatchewan Court of Appeal ordered a new trial on the charge of attempted rape - The court held that exercise of authority was relevant to the issue of consent - See paragraphs 11 to 23.

Criminal Law - Topic 2621

Attempts, conspiracies, accessories and parties - Attempts - General - The accused was convicted of attempted rape - The alleged offence occurred in 1969 when the accused was a Royal Canadian Mounted Police officer and the complainant was a 14 year old girl - The accused appealed the conviction - The Crown conceded that the conviction could not stand because of errors in the jury charge - The Crown contended that there should be a new trial - The accused argued that an acquittal should be entered because, inter alia, there was no evidence upon which a jury could find an attempt at sexual intercourse where the complainant's evidence was that inter­course had occurred - The Saskatchewan Court of Appeal ordered a new trial on the charge of attempted rape - Given the jury's right to accept or reject all or any part of the evidence of witnesses, there was evi­dence upon which a jury could convict of attempted rape - See paragraphs 23 to 27.

Criminal Law - Topic 4944

Appeals - Indictable offences - New trials - When available - General - [See Criminal Law - Topic 666 and Criminal Law - Topic 2621 ].

Cases Noticed:

R. v. O'Connor (H.P.) (1998), 105 B.C.A.C. 56; 171 W.A.C. 56; 123 C.C.C.(3d) 487 (C.A.), refd to. [para. 13].

R. v. Shearing (L.) (2000), 133 B.C.A.C. 121; 217 W.A.C. 121; 31 C.R.(5th) 177 (C.A.), refd to. [para. 13].

R. v. L.B. (1998), 106 B.C.A.C. 154; 172 W.A.C. 154 (Yuk. C.A.), refd to. [para. 13].

R. v. Landry (1935), 64 C.C.C. 104 (N.B.C.A.), refd to. [para. 13].

R. v. Kyselka (1962), 37 C.R. 391 (Ont. C.A.), refd to. [para. 13].

R. v. Jones (1934), 63 C.C.C. 341 (B.C.C.A.), refd to. [para. 13].

R. v. Lock (1872), L.R. 2 C.R.R. 10, refd to. [para. 16].

R. v. Nichol (1807), Russ. & Ry. 131; 168 E.R. 720 (C.C.R.), refd to. [para. 16].

R. v. Jobidon, [1991] 2 S.C.R. 714; 128 N.R. 321; 49 O.A.C. 83, refd to. [para. 18].

R. v. Cuerrier (H.G.), [1998] 2 S.C.R. 371; 229 N.R. 279; 111 B.C.A.C. 1; 181 W.A.C. 1, refd to. [para. 19].

Norberg v. Wynrib, [1992] 2 S.C.R. 226; 138 N.R. 81; 9 B.C.A.C. 1; 19 W.A.C. 1; 92 D.L.R.(4th) 449; [1992] 4 W.W.R. 577; 12 C.C.L.T.(2d) 1; 68 B.C.L.R.(2d) 29, refd to. [para. 20].

R. v. Audet (Y.), [1996] 2 S.C.R. 171; 197 N.R. 172; 175 N.B.R.(2d) 81; 446 A.P.R. 81; 106 C.C.C.(3d) 481, refd to. [para. 20].

R. v. Day (1841), 173 E.R. 1026, refd to. [para. 23].

R. v. M.L.M., [1994] 2 S.C.R. 3; 166 N.R. 241; 131 N.S.R.(2d) 79; 371 A.P.R. 79; 89 C.C.C.(3d) 96, refd to. [para. 23].

R. v. Smith, [1979] 1 S.C.R. 215; 24 N.R. 451; 13 A.R. 447; 43 C.C.C.(2d) 417, refd to. [para. 24].

Counsel:

David Paciocco, for Mr. Ramsay;

W. Dean Sinclair, for the Crown.

This appeal was heard on November 13, 2000, before Bayda, C.J.S., Vancise and Sherstobitoff, JJ.A., of the Saskatchewan Court of Appeal. The following judgment of the Court of Appeal was delivered by Sher­stobitoff, J.A., on January 24, 2001.