R. v. Ross, (1979) 1 Man.R.(2d) 242 (CA)

JudgeMonnin, Hall, Matas, O'Sullivan and Huband, JJ.A.
CourtCourt of Appeal (Manitoba)
Case DateJune 15, 1979
JurisdictionManitoba
Citations(1979), 1 Man.R.(2d) 242 (CA)

R. v. Ross (1979), 1 Man.R.(2d) 242 (CA)

MLB headnote and full text

R. v. Ross

Indexed As: R. v. Ross

Manitoba Court of Appeal

Monnin, Hall, Matas, O'Sullivan and Huband, JJ.A.

June 15, 1979.

Summary:

This case arose out of charges against the accused of attempted rape and causing bodily harm with intent to wound contrary to ss. 145 and 228, respectively, of the Criminal Code of Canada, R.S.C. 1970, c. C-34. The accused attacked and attempted to rape an old woman, beating and permanently injuring her in the process. The accused was charged and convicted of attempted rape and causing bodily harm with intent to wound. The accused appealed from conviction and sentence and the Crown cross-appealed from sentence.

The Manitoba Court of Appeal affirmed the convictions of the accused on both charges, notwithstanding that both arose out of one occurrence - see paragraph 1. The Court of Appeal increased the sentence of the accused for attempted rape from seven years to ten years imprisonment to run concurrently with a ten year term of imprisonment for causing bodily harm and to wound - see paragraphs 2 to 3 and 12.

O'Sullivan and Huband, JJ.A., were of the opinion that the accused should only have been charged with attempted rape, which was the primary offence, because the accused should not be charged with two offences arising out of the same incident - see paragraphs 4 to 11.

O'Sullivan, J.A., in sentencing the accused for attempted rape would have credited him with time already served - see paragraph 5.

Criminal Law - Topic 80

Res judicata - Multiple convictions for same subject matter precluded - Circumstances when defence may be raised - The accused attacked and attempted to rape an old woman, beating and permanently injuring her in the process - The Manitoba Court of Appeal held that the accused was properly convicted of both attempted rape and causing bodily harm with intent to wound, notwithstanding that both offences arose out of one occurrence - See paragraph 1.

Criminal Law - Topic 5852

Sentence - Rape - Attempted rape - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 145 - The accused attacked and attempted to rape an old woman, beating and permanently injuring her in the process - The accused had a bad record of previous criminal convictions, including many involving violence - The Manitoba Court of Appeal increased the sentence of the accused for attempted rape from seven to ten years imprisonment, to run concurrently with a sentence of ten years imprisonment for wounding with intent - See paragraphs 2 to 3 and 12.

Criminal Law - Topic 5860

Sentence - Causing bodily harm with intent to wound - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 228 - The accused attacked and attempted to rape an old woman, beating and permanently injuring her in the process - The accused had a bad record of previous criminal convictions, including many involving violence - The Manitoba Court of Appeal affirmed the sentence of the accused to ten years imprisonment for causing bodily harm with intent to wound to run concurrently with a ten year term of imprisonment for attempted rape - See paragraphs 2 to 3 and 12.

Cases Noticed:

R. v. Kienapple (1974), 15 C.C.C.(2d) 524; 1 N.R. 322; 26 C.R.N.S. 25; [1975] 1 S.C.R. 729, consd. [para. 10].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 145, sect. 228.

Counsel:

D.N. Abra, for the appellant;

G.G. Brodsky, Q.C., for the accused/respondent.

This case was heard on June 15, 1979, at Winnipeg, Manitoba, before MONNIN, HALL, MATAS, O'SULLIVAN and HUBAND, JJ.A., of the Manitoba Court of Appeal.

On June 15, 1979, the judgment of the Court of Appeal was delivered and the following opinions were filed:

MONNIN, J.A. - see paragraphs 1 to 3;

O'SULLIVAN, J.A., dissenting - see paragraphs 4 to 5;

HUBAND, J.A., dissenting in part - see paragraphs 6 to 12.

HALL and MATAS, JJ.A., concurred with MONNIN, J.A.

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2 practice notes
  • R. v. Ross, (1980) 31 N.R. 360 (Motion)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • February 4, 1980
    ...to appeal to the Supreme Court of Canada was dismissed in the case of R. v. Samuel Robert Ross , a case from the Manitoba courts, see 1 Man.R.(2d) 242 - see Bulletin of Proceedings taken in the Supreme Court of Canada at page 1, February 8, 1980. Motion dismissed. [End of document] R. v.......
  • R. v. Browning-Ferris Industries of Winnipeg (1974) Ltd., (1980) 2 Man.R.(2d) 268 (CA)
    • Canada
    • Manitoba Court of Appeal (Manitoba)
    • February 7, 1980
    ...Stelmaschuk (1977), 36 C.C.C.(2d) 317, consd. [para. 25]. R. v. McKinney et al., [1979] 2 W.W.R. 545, consd. [para. 26]. R. v. Ross (1979), 1 Man.R.(2d) 242, consd. [para. R. v. Dore (1974), 1 N.R. 489; 15 C.C.C.(2d) 542, appld. [para. 28]. R. v. Thomas (1949), 33 Cr. App. R. 200, refd to. ......
2 cases
  • R. v. Ross, (1980) 31 N.R. 360 (Motion)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • February 4, 1980
    ...to appeal to the Supreme Court of Canada was dismissed in the case of R. v. Samuel Robert Ross , a case from the Manitoba courts, see 1 Man.R.(2d) 242 - see Bulletin of Proceedings taken in the Supreme Court of Canada at page 1, February 8, 1980. Motion dismissed. [End of document] R. v.......
  • R. v. Browning-Ferris Industries of Winnipeg (1974) Ltd., (1980) 2 Man.R.(2d) 268 (CA)
    • Canada
    • Manitoba Court of Appeal (Manitoba)
    • February 7, 1980
    ...Stelmaschuk (1977), 36 C.C.C.(2d) 317, consd. [para. 25]. R. v. McKinney et al., [1979] 2 W.W.R. 545, consd. [para. 26]. R. v. Ross (1979), 1 Man.R.(2d) 242, consd. [para. R. v. Dore (1974), 1 N.R. 489; 15 C.C.C.(2d) 542, appld. [para. 28]. R. v. Thomas (1949), 33 Cr. App. R. 200, refd to. ......

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