R. v. Roth (L.C.), (2002) 306 A.R. 387 (QB)

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 07, 2002
• Citations: (2002), 306 A.R. 387 (QB);2002 ABQB 145

R. v. Roth (L.C.) (2002), 306 A.R. 387 (QB)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. FE.046

Her Majesty the Queen (respondent) v. Lain Cory Roth (applicant/accused)

(Action Nos. 016079493 Q1; 016079493 Q2; 2002 ABQB 145)

Indexed As: R. v. Roth (L.C.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

February 7, 2002.

Summary:

The accused was charged with engaging in anal intercourse contrary to s. 159 of the Criminal Code. The Crown subsequently filed a new indictment charging the accused with engaging in anal intercourse contrary to s. 159 and sexual assault contrary to s. 271 related to the anal intercourse. The accused applied for a declaration that s. 159 was contrary to s. 15 of the Charter. The Crown asked the court to permit the continuation of the proceedings under the new indictment if s. 159 was ruled unconstitutional.

The Alberta Court of Queen's Bench held that s. 159 was unconstitutional. The court held that the Crown could not proceed on the new indictment and had to commence the criminal process anew.

Civil Rights - Topic 921

Discrimination - Marital status - General - Section 159(1) of the Criminal Code made anal intercourse an offence - Section 159(2) provided that s. 159(1) did not apply to any act engaged in, "in private" between a husband and wife or two con­senting adults - Section 159(3)(a) provided that an act shall be deemed not to be in private if, inter alia, more than two people took part or were present - The Alberta Court of Queen's Bench held that s. 159 breached equality rights related to age, marital status and sexual orientation as guaranteed by s. 15 of the Charter - The court declared s. 159 unconstitutional and of no force and effect - See paragraphs 15 to 19.

Civil Rights - Topic 951

Discrimination - Sexual orientation - Gen­eral - [See Civil Rights - Topic 921 ].

Civil Rights - Topic 1128

Discrimination - Criminal and quasi-crimi­nal law - On basis of age - [See Civil Rights - Topic 921 ].

Civil Rights - Topic 1130

Discrimination - Criminal and quasi-crimi­nal law - On basis of sex or sexual orienta­tion - [See Civil Rights - Topic 921 ].

Civil Rights - Topic 5645

Equality and protection of the law - Sexual offences - [See Civil Rights - Topic 921 ].

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - What constitutes a breach of s. 15 - [See Civil Rights - Topic 921 ].

Criminal Law - Topic 704

Sexual offences - Anal intercourse - [See Civil Rights - Topic 921 ].

Criminal Law - Topic 4273

Procedure - Indictment - Amendment - Circumstances prohibiting - The accused allegedly performed non-consensual anal intercourse upon the complainant - The accused was charged - The information, which mentioned the act of anal inter­course and s. 271 of the Criminal Code (sexual assault), was amended at the ar­raignment to read that the act of anal intercourse was contrary to s. 159 of the Code - The accused was committed to stand trial - Subsequently, the Crown filed a new indictment which charged one count of anal intercourse under s. 159 and one count of sexual assault under s. 271 for having anal intercourse without the com­plainant's consent - The Alberta Court of Queen's Bench held that s. 159 was uncon­stitutional and a nullity - The proceedings taken on the basis of a nullity were them­selves a nullity - The nullity could not be amended or in any way form the basis of ongoing proceedings - Therefore, the Crown could not proceed under the new indictment, although it could commence new proceedings - See paragraphs 3, 4 and 20 to 28.

Criminal Law - Topic 4737

Procedure - Information or indictment - Charge or count - Indictable offences - Amendment of - Before trial - [See Crimi­nal Law - Topic 4273 ].

Cases Noticed:

R. v. Jobidon, [1991] 2 S.C.R. 714; 128 N.R. 321; 49 O.A.C. 83; 66 C.C.C.(3d) 454, refd to. [para. 5].

R. v. C.M. (1992), 75 C.C.C.(3d) 556 (Ont. Gen. Div.), refd to. [para. 5].

R. v. C.M. (1995), 82 O.A.C. 68 (C.A.), folld. [paras. 5, 16].

R. v. Roy, [1998] A.Q. No. 935 (C.A.), folld. [paras. 5, 16].

R. v. A.S. (1998), 113 O.A.C. 340 (C.A.), leave to appeal denied (1999), 249 N.R. 195; 137 O.A.C. 400 (S.C.C.), refd to. [paras. 5, 16].

R. v. Sinclair, [1992] A.J. No. 1062 (Prov. Ct.), refd to. [para. 5].

R. v. D.H. (1989), 93 A.R. 110 (Prov. Ct.), refd to. [paras. 6, 17].

R. v. G.G. (2001), 156 B.C.A.C. 40; 255 W.A.C. 40 (C.A.), refd to. [paras. 8, 16].

R. v. Talbot (G.) (2002), 155 O.A.C. 41 (C.A.), refd to. [paras. 8, 16].

R. v. Garcia, [1990] B.C.J. 371 (C.A.), refd to. [para. 7].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 159 [para. 1]; sect. 574(1) [para. 20].

Counsel:

Robert A. Joly, for the applicant, Roth;

Charles P. Cobban, for the Crown.

This application was heard on February 4 and 7, 2002, by Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Ed­monton, who delivered the following deci­sion on February 7, 2002.