R. v. Bergstrom, (1981) 9 Man.R.(2d) 1 (SCC)

• Judge: Laskin, C.J.C., Martland, Dickson, Estey, McIntyre, Chouinard and Lamer, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 11, 1981
• Jurisdiction: Canada (Federal)
• Citations: (1981), 9 Man.R.(2d) 1 (SCC);[1981] 5 WWR 496;[1981] 1 SCR 539;59 CCC (2d) 481;1981 CanLII 188 (SCC);123 DLR (3d) 584

R. v. Bergstrom (1981), 9 Man.R.(2d) 1 (SCC)

MLB headnote and full text

R v. Bergstrom

Indexed As: R. v. Bergstrom

Supreme Court of Canada

Laskin, C.J.C., Martland, Dickson, Estey, McIntyre, Chouinard and Lamer, JJ.

May 11, 1981.

Summary:

This case arose out of a charge of rape against the accused. The accused pleaded the defence of compulsion. He claimed that he was forced to rape the girl by his violent and dangerous companion; however, he had ample opportunity to escape during the various sexual acts inflicted on the girl. The trial judge put the defence of compulsion to the jury. The jury acquitted the accused. The Crown appealed.

The Manitoba Court of Appeal allowed the appeal and ordered a new trial. The judgment of the Manitoba Court of Appeal is reported at 2 Man.R.(2d) 121.

The Manitoba Court of Appeal held that the trial judge erred in putting the defence of compulsion to the jury, because it was not available to the accused on the evidence. The accused appealed to the Supreme Court of Canada.

The Supreme Court of Canada dismissed the appeal and affirmed the order for a new trial. The Supreme Court of Canada held that the defence of compulsion was not available to an accused charged with rape.

Criminal Law - Topic 226

Defences, statutory - Compulsion - The Supreme Court of Canada interpreted s. 17 of the Criminal Code and held that the defence of compulsion was not available to an accused charged with rape.

Words and Phrases

Assisting in rape - The Supreme Court of Canada discussed the meaning of phrase "assisting in rape" as found in s. 17 of the Criminal Code of Canada, R.S.C. 1970, c. C-34 - See paragraph 15.

Cases Noticed:

R. v. Folkes and Ludds (1832), 1 Mood. 354, refd to. [para. 11].

R. v. Gray and Wise (1835), 7 Car. & P. 164, refd to. [para. 11].

R. v. Crisham (1841), Car & M. 187, refd to. [para. 11].

R. v. Harder, [1956] S.C.R. 489, refd to. [para. 14].

Mensinger v. O'Hara (1914), 189 III App. 48, refd to. [para. 16].

R. v. Lord Baltimore (1978), 4 Burr. 2179, refd to. [para. 18].

R. v. Audley (Lord)(1631), St. Tr. 401, refd to. [para. 18].

R. v. Ram and Ram (1893), 17 Cox C.C. 609, refd to. [para. 18].

R. v. Eldershaw (1828), 3 Car. & P. 396, refd to. [para. 18].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 17 [para. 8].

Authors and Works Noticed:

Hale, History of the Pleas of the Crown (1736), vol. 1, page 628 [para. 11].

Chitty on Criminal Law (2d) (1826), vol. 1, p. 555(a) [para. 13].

Archbold's Criminal Pleading and Practice (7d) (1860), vol. 1, page 66 [para. 13].

Archbold's Pleading and Evidence in Criminal Cases (20d) (1886), page 804 [para. 13].

Clarke's Criminal Law of Canada (1872), page 97 [para. 14].

Crankshaw's Criminal Code (1894), page 13 [para. 19].

Counsel:

Norm Cuddy, for the appellant;

J.G.B. Dangerfield, Q.C., and H.J. Whitley, for the respondent.

This appeal was heard by LASKIN, C.J.C., MARTLAND, DICKSON, ESTEY, McINTYRE, CHOUINARD and LAMER, JJ., of the Supreme Court of Canada, at Ottawa, Ontario, on December 9, 1980.

The judgment of the Supreme Court of Canada was delivered by McINTYRE, J., on May 11, 1981: