R. v. Sharpe

2004 BCSC 241 R. v. Sharpe IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Sharpe, 2004 BCSC 241 Date: 20040220 Docket: 21321 Registry: Vancouver Between: Regina And John Robin Sharpe Publication Ban in Place Pending a Verdict from the Jury or Further Order of the Court Before: The Honourable Mr. Justice E.R.A. Edwards Ruling on Application for Particulars Counsel for the Crown E.Z. Poll Counsel for the Defence J.I. Heller Date and Place of Trial/Hearing: February 18, 2004 Vancouver, B.C. [1] The accused is charged as follows: Count 1 At or near Vancouver, in the Province of British Columbia, between the 1st day of January, 1978 and the 31st day of December, 1983, he did commit an act (or acts) of gross indecency with C.M., contrary to Section 157 of the Criminal Code of Canada, R.S.C. 1970. Count 2 At or near Vancouver, in the Province of British Columbia, between the 1st day of January, 1978 and the 3rd day of January, 1983, being a male person, he did indecently assault another male person, C.M., contrary to Section 156 of the Criminal Code of Canada, R.S.C. 1970. Count 3 At or near Vancouver, Province of British Columbia, between the 4th day of January, 1983 and the 31st day of December 1983, he did sexually assault C.M., contrary to Sec 246.1 of the Criminal Code of Canada, S.C. 1980-81-82. [2] Defence counsel applied for an order requiring the Crown to supply particulars of what conduct the Crown alleges constitutes indecent assault under Count 1, and gross indecency under Count 2. [3] This application is a companion to, and something of a makeweight for, the defence submissions on an application to stay those Counts on the basis that they are constitutionally void for vagueness under the Canadian Charter of Rights and Freedoms, which I have simultaneously dismissed. [4] The law is well established that the Crown must, in each count provide sufficient details to inform the accused of the charge, but need not set out facts which disclose Crown theories where there may be more than one way the offence may be made out on the evidence. [5] There is no question that there has been full disclosure in this case and there has been a Preliminary Inquiry at which the complainant disclosed a variety of sexual activity he says the accused engaged in with him while he was under the age of 14. [6] According to defence counsel the accused will not deny that the sexual activity occurred, but will maintain none of it occurred until after the accused was over the age of 14. [7] Crown counsel has repeatedly stated on the record that he will not be asserting that the taking of nude photos of the complainant by the accused constituted the actus reas of the offences charged. [8] I do not see how it can be said that the accused can be in any doubt about the case he has to meet. [9] What the accused is seeking, by asking for particulars, is a disclosure of the Crown's theory or theories through a narrowing of the allegations by particularization. [10] The Crown is not required to disclose its theories through particularization. See for example R. v. Guess, [1997] B.C.J No. 3113 (S.C.). [11] The Crown must disclose in each count the elements of the offence charged but not the precise acts said to constitute the offence. For example in R. v. Hall, [1993] O.J. No. 3344 (O.C.J. Gen. Div.) the accused was found guilty of acts of gross indecency involving fellatio on counts which did not particularize that act. [12] I am not persuaded that Counts 1 and 2 fail to provide sufficient detail as required by s. 581 of the Criminal Code, nor that there is any basis for ordering particulars under s. 587 or otherwise. [13] The defence application for particulars is accordingly dismissed. "E.R.A. Edwards, J." The Honourable Mr. Justice E.R.A. Edwards