R v G.R.

R. v. G.R.

[2005] 2 S.C.R. 371, 2005 SCC 45
Supreme Court of Canada — Binnie J. (majority), Abella J. (dissent) | July 22, 2005

Background

G.R. was charged with incest involving his daughter, who was between five and nine years old during the alleged incidents. At trial, the daughter testified that her father had not put his penis into her vulva, though medical evidence showed some form of penetration had occurred. The father categorically denied any sexual contact with his daughter.

The trial judge convicted G.R. of attempted incest. On appeal, the Crown conceded there was insufficient evidence for attempted incest, but argued the court should instead convict him of sexual assault and sexual interference — even though he had never been charged with those offences. The Quebec Court of Appeal refused and acquitted him entirely.

Issues

1. Can an accused be convicted of sexual assault and sexual interference as "included offences" when charged only with incest?
2. What constitutes fair notice of the charges an accused must defend against?

The Included Offences Problem

Section 662 of the Criminal Code allows conviction for "included offences" — but only in three specific situations: (1) when the Code explicitly says one offence includes another, (2) when the statutory definition necessarily includes the lesser offence, or (3) when the indictment's wording describes facts that put the accused on notice of the included charge.

The majority found none of these applied. Incest can be committed consensually between adults — it doesn't require assault. The age of the victim isn't an element of incest. Most importantly, the indictment never mentioned the daughter's age or lack of consent. The Crown was essentially trying to add new charges after the fact based on evidence that emerged at trial.

Justice Binnie emphasized a fundamental principle: "The basis of our criminal law is that [an accused] is only called upon to meet the charge put forward by the prosecution." You can't be convicted of charges that were never formally laid against you, even if the facts might support them.

Key Takeaway

Fair notice means you can only be convicted of what you were actually charged with — not what the Crown wishes it had charged you with.

This principle protects accused persons from surprise convictions and ensures they know exactly what they need to defend against. The Crown's prosecutorial choices have consequences, and courts won't rescue them from strategic errors after the fact.