r. v. green, [1988] 1 S.C.R. 228
Her Majesty The Queen Appellant
v.
Kenneth Allen Green Respondent
indexed as: r. v. green
File No.: 19996.
1987: December 1; 1988: February 11.
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.