R. v. Bergner, (1987) 78 A.R. 331 (CA)

• Court: Court of Appeal (Alberta)
• Case Date: June 24, 1987
• Citations: (1987), 78 A.R. 331 (CA)

R. v. Bergner (1987), 78 A.R. 331 (CA)

MLB headnote and full text

R. v. Robert Bergner

(Appeal Nos. 8603-0858-A, 8603-0862-A)

Indexed As: R. v. Bergner

Alberta Court of Appeal

Laycraft, C.J.A., Lieberman, J.A., and Veit, J. (ad hoc)

June 24, 1987.

Summary:

Bergner and Janke had a consensual fist fight. It was unclear whether Janke's injuries arose from the fist fight or from being kicked when he fell down. The trial judge acquitted the accused on charges of assault causing bodily harm and unlawfully causing bodily harm on the ground that there was no assault as defined in s. 244(1) of the Criminal Code where Janke consented to the fist fight.

The trial judge convicted Bergner of the lesser offence of assault arising from the kicking incident following the fist fight, because the consent to a fist fight did not extend to being kicked. The Crown appealed the acquittal on the two charges and the sentence imposed for assault.

The Alberta Court of Appeal dismissed the appeal against conviction and adjourned the sentence appeal.

Criminal Law - Topic 1422

Assaults - Defence - Consent - The Alberta Court of Appeal held that although a person could not consent to a fight involving weapons, consent to a fist fight was a defence to assault - The court held that the fact that the participants were angry or intended to cause injury or actual bodily harm did not nullify the consent.

Cases Noticed:

R. v. Carriere (1987), 76 A.R. 151, consd. [para. 2].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322; 15 C.C.C.(2d) 524; 44 D.L.R.(3d) 351; 15 C.R. 729; 26 C.R.N.S. 1, refd to. [para. 11].

R. v. Terlecki, [1985] 2 S.C.R. 483; 64 N.R. 233; 65 A.R. 401, refd to. [para. 11].

R. v. Wright (1603), 1 Co. Inst. 127a, disagreed with [para. 12].

R. v. Coney and Others (1882), 8 Q.B.D. 534, disagreed with [para. 12].

R. v. Donovan, [1934] All E.R. 207, disagreed with [para. 12].

Attorney General's Reference (No. 6 of 1980), [1981] 2 All E.R. 1057, disagreed with [para. 12].

R. v. MacTavish (1972), 4 N.B.R.(2d) 876 (C.A.), refd to. [para. 13].

R. v. Abraham (1977), 30 C.C.C.(2d) 332 (Que. C.A.), refd to. [para. 13].

R. v. Dix (1973), 10 C.C.C.(2d) 324 (Ont. C.A.), refd to. [para. 13].

R. v. Squire (1975), 31 C.R.N.S. 314 (Ont. C.A.), disagreed with [para. 14].

R. v. Buchanan (1898), 1 C.C.C. 442 (Man. C.A.), disagreed with [para. 15].

R. v. Kusyj (1983), 51 A.R. 243 (N.W.T.S.C.), disagreed with [para. 18].

R. v. Setrum (1977), 32 C.C.C.(2d) 109 (Sask. C.A.), refd to. [para. 19].

R. v. Crowse (1982), 39 N.B.R.(2d) 1; 103 A.P.R. 1 (Q.B.), refd to. [para. 19].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 244(1).

Authors and Works Noticed:

Tremeear's Criminal Code (6th Ed.), p. 372 [para. 20].

Counsel:

J. Watson, for the Crown;

J.J. Donahoe, for the accused.

This appeal was heard before Laycraft, C.J.A., Lieberman, J.A., and Veit, J. (ad hoc), of the Alberta Court of Appeal.

On June 24, 1987, Laycraft, C.J.A., delivered the following judgment for the Court of Appeal.