Present: Estey,
McIntyre, Lamer, La Forest and L'Heureux‑Dubé JJ.
on appeal from the court of appeal for manitoba
Criminal
law ‑‑ Sexual assault ‑‑ Similar fact evidence ‑‑
Respondent charged with sexual assault on a minor ‑‑ Evidence
coming from children other than complainant ‑‑ Whether such
evidence admissible.
Held (Estey and Lamer
JJ. dissenting): The appeal should be allowed.
Per McIntyre, La
Forest and L'Heureux‑Dubé JJ.: The similar fact evidence was admissible
to show a system adopted by respondent. Its probative force was sufficient to
outweigh any prejudicial effect on respondent.
Per Estey and Lamer
JJ. (dissenting): There is substantial agreement with the majority of the Court
of Appeal that when applied to the fact of this case the evidence was
inadmissible.
APPEAL
from a judgment of the Manitoba Court of Appeal (1986), 42 Man. R. (2d) 81,
allowing an appeal by respondent and entering an acquittal on a charge of
sexual assault. Appeal allowed, Estey and Lamer JJ. dissenting.
David
Rampersad, Q.C., for the appellant.
Robert
L. Pollack, for the respondent.
The
following are the reasons delivered by
1. Estey and Lamer JJ.
(dissenting)‑‑This appeal comes to us as of right. We are in
substantial agreement with the exposition by the majority of the Court of
Appeal of the rules of law applicable in this appeal and with the result they
arrive at when they are applied to the facts of this case.
2. We
would accordingly dismiss this appeal.
The
judgment of McIntyre, La Forest and L'Heureux‑Dubé was delivered by
3. McIntyre J.‑‑The
respondent in this appeal was convicted at trial of sexual assault upon a young
girl. His appeal to the Manitoba Court of Appeal (Monnin C.J.M., Philp and
Twaddle JJ.A.) was allowed, Monnin C.J.M. dissenting: (1986), 42 Man. R. (2d)
81. The only issue argued before us concerned the admission at trial of similar
fact evidence, which came from children other than the complainant concerning
the respondent's behaviour with them. This evidence was admissible to show a
system adopted by the respondent, and its probative force was sufficient to
outweigh any prejudicial effect upon the respondent. In my opinion, no error
was made by the trial judge in its admission and I would allow the appeal and
restore the conviction.
Appeal
allowed, Estey and Lamer JJ. dissenting.
Solicitor
for the appellant: The Department of the Attorney General, Winnipeg.
Solicitors
for the respondent: Skwark, Myers, Kussin, Weinstein, Winnipeg.
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