R. v. W.D.C.G., (1987) 81 N.B.R.(2d) 86 (CA)

JudgeStratton, C.J.N.B., Hoyt and Ryan, JJ.A.
CourtCourt of Appeal (New Brunswick)
Case DateApril 14, 1987
JurisdictionNew Brunswick
Citations(1987), 81 N.B.R.(2d) 86 (CA)

R. v. W.D.C.G. (1987), 81 N.B.R.(2d) 86 (CA);

    81 R.N.-B.(2e) 86; 205 A.P.R. 86

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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W.D.C.G. (appellant) v. Her Majesty the Queen (respondent)

(241/86/CA)

Indexed As: R. v. W.D.C.G.

Répertorié: R. v. W.D.C.G.

New Brunswick Court of Appeal

Stratton, C.J.N.B., Hoyt and Ryan, JJ.A.

May 12, 1987.

Summary:

Résumé:

The accused was charged with indecently assaulting two female persons, contrary to s. 149(1) of the Criminal Code. The accused applied to quash the information on the ground that s. 149(1) was inconsistent with the right to equality without discrimination as found in s. 15(1) of the Charter.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision unreported in this series of reports, dismissed the application. The accused appealed pursuant to s. 719(1) of the Code.

The New Brunswick Court of Appeal dismissed the appeal.

Civil Rights - Topic 1130

Discrimination - Criminal and quasi-criminal law - On basis of sex - Indecent assault - S. 149(1) of the Criminal Code provided that "everyone who indecently assaults a female person is guilty of an indictable offence ..." - The New Brunswick Court of Appeal held that s. 149(1) did not discriminate against males in general or the accused in particular, contrary to s. 15(1) of the Charter, merely because men could not be victims of an indecent assault - See paragraphs 3 to 7.

Civil Rights - Topic 5514

Equality and protection of the law - Charter, s. 15 - Effect of - The New Brunswick Court of Appeal stated that when s. 15(1) of the Charter speaks of "equal protection and equal benefit of the law" it does not mean that if special groups are singled out for protection (by Criminal Code provisions) the sanction automatically fails unless saved by s. 1. It means that the impugned provision (of the Code) must be considered in its entirety, that is, who may be charged, the activity prescribed and the penalty" - See paragraph 7.

Civil Rights - Topic 5645

Equality and protection of the law - Sexual offences - Indecent assault - [See Civil Rights - Topic 1130 above].

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - Application - Retrospectivity - After s. 15(1) of the Charter came into force the accused was charged with an offence which allegedly occurred before s. 15(1) came into force - The New Brunswick Court of Appeal held that s. 15(1) was inapplicable - See paragraph 8.

Criminal Law - Topic 611

Sexual offences - Indecent assault - General - [See Civil Rights - Topic 1130 above].

Cases Noticed:

R. v. Howell (1986), 57 Nfld. & P.E.I.R. 198; 170 A.P.R. 198, refd to. [para. 5].

R. v. Poirier (1986), 69 N.B.R.(2d) 1; 177 A.P.R. 1, refd to. [para. 6].

R. v. Drybones (1985), 23 C.C.C.(3d) 457, refd to. [para. 6].

R. v. Thorburn (1986), 26 C.C.C.(3d) 154 (B.C.C.A.), agreed with [para. 8].

R. v. Lucas; R. v. Neely (1986), 14 O.A.C. 124; 27 C.C.C.(3d) 229 (C.A.), agreed with [para. 8].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 146(2) [paras. 6-7]; sect. 149(1) [paras. 1-5, 7]; sect. 153(1)(a) [paras. 5, 7]; sect. 246.1 [para. 3].

Criminal Law Amendment Act, S.C. 1980-81-82, c. 125, sect. 8, sect. 19, sect. 33 [para. 3].

Canadian Charter of Rights and Freedoms, 1982, sect. 15(1) [paras. 1-3, 5, 7-8].

Constitution Act 1982, sect. 52(1) [para. 3].

Counsel:

Mark J. LeBlanc, for the appellant;

Marc Richard, for the respondent.

This appeal was heard before Stratton, C.J.N.B., Hoyt and Ryan, JJ.A., of the New Brunswick Court of Appeal on April 14, 1987. The decision of the Court of Appeal was delivered by Hoyt, J.A., on May 12, 1987.

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