R. v. Bergstrom, (1980) 2 Man.R.(2d) 121 (CA)

• Judge: Monnin, Matas and Huband, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: January 22, 1980
• Jurisdiction: Manitoba
• Citations: (1980), 2 Man.R.(2d) 121 (CA)

R. v. Bergstrom (1980), 2 Man.R.(2d) 121 (CA)

MLB headnote and full text

R. v. Bergstrom

Indexed As: R. v. Bergstrom

Manitoba Court of Appeal

Monnin, Matas and Huband, JJ.A.

January 22, 1980.

Summary:

This case arose out of a charge of rape against the accused. The accused pleaded the defence of duress or 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 duress or compulsion to the jury, which acquitted the accused. The Crown appealed.

The Manitoba Court of Appeal allowed the appeal and ordered a new trial. The Court of Appeal held that the trial judge erred in putting the defence of duress to the jury, because it was not available to the accused on the evidence. The Court of Appeal held that the defence of duress is not available to an accused who had an opportunity to escape before committing the crime - see paragraphs 1 to 55.

Huband, J.A., dissenting, would have dismissed the appeal, because there was sufficient evidence to justify leaving the issue of duress with the jury - see paragraphs 56 to 96.

Criminal Law - Topic 202

Defences - Common law defences - Duress - The accused was charged with raping a girl - He pleaded in defence that he was forced to rape the girl by his violent and dangerous companion, who raped the girl first, then ordered the accused to do so - During the course of the attack the accused had many opportunities to leave the scene - The trial judge put the defence of duress to the jury, which acquitted the accused - The Manitoba Court of Appeal allowed the Crown's appeal and held that the defence of duress should not have been put to the jury, because the defence of duress was not available to the accused in the circumstances - The Court of Appeal held that the defence of duress was only available when an accused cannot resist threats or run away from them - See paragraphs 1 to 55.

Criminal Law - Topic 226

Defences - Statutory defences - Compulsion - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 17 - The accused was charged with raping a girl - He pleaded in defence that he was forced to rape the girl by his violent and dangerous companion, who raped the girl first, then ordered the accused to do so - During the course of the attack the accused had many opportunities to leave the scene - The trial judge put the defence of compulsion to the jury, which acquitted the accused - The Manitoba Court of Appeal allowed the Crown's appeal and held that the defence of compulsion should not have been put to the jury, because the defence of compulsion was not available to the accused in the circumstances - The Court of Appeal held that the defence of compulsion was only available when an accused cannot resist threats or run away from them - See paragraphs 1 to 55 - The Court of Appeal discussed without deciding whether the exemption of "assisting in rape" from the defence of compulsion included a charge of rape itself, where there was no offence of "assisting in rape" in the Criminal Code of Canada - See paragraphs 5 to 6, 42 to 45 and 85 to 96.

Criminal Law - Topic 4386

Procedure - Charge or directions to jury - Duty of trial judge to decide if particular defence is available on the evidence - The Manitoba Court of Appeal held that whether an accused has raised the excuse of compulsion by sufficient evidence to go to the jury is a question of law by the trial judge - See paragraphs 46 to 49.

Criminal Law - Topic 5218

Evidence - Burden of proof - Defences - The Manitoba Court of Appeal held that the burden is on an accused to raise a defence by sufficient evidence to go to the jury - See paragraph 41.

Cases Noticed:

R. v. Paquette, [1977] 2 S.C.R. 189; 11 N.R. 451; 30 C.C.C.(2d) 417, consd. [paras. 19, 40, 94].

R. v. Carker (1968), 2 C.R.N.S. 16, appld. [paras. 19, 41, 48].

R. v. Gill, [1963] 2 All E.R. 688; 47 Cr. App. R. 166, consd. [paras. 19, 41, 69].

Lynch v. D.P.P., [1975] 1 All E.R. 913, consd. [para. 19].

R. v. Steane, [1947] 1 All E.R. 813, consd. [para. 19].

R. v. Hurley and Murray, [1967] V.R. 526, consd. [para. 39].

R. v. Salajko (1970), 9 C.R.N.S. 145 (Ont. C.A.), appld. [para. 45].

Dunlop and Sylvester v. R. (1979), 8 C.R.(3d) 349, appld. [para. 45].

R.I. Recreation Center Inc. v. Aetna Casualty & Surety Co. (1950), 177 F. 2d 603, consd. [para. 47].

Holmes v. Director of Public Prosecutions, [1946] A.C. 588, appld. [para. 50].

Subramaniam v. Public Prosecutor, [1956] 1 W.L.R. 965, refd to. [para. 51].

R. v. Morgentaler (1976), 64 D.L.R.(3d) 781, consd. [para. 79].

Director of Public Prosecutions for Northern Ireland v. Lynch, [1975] A.C. 653, consd. [para. 95].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 7(3) [para. 3]; sect. 17 [paras. 3, 34]; sect. 21 [para. 90].

Authors and Works Noticed:

Adams, Criminal Law and Practice in New Zealand (2nd Ed.), pp. 138 [para. 39]; 142 [para. 43].

Duress and Criminal Responsibility, [1977] Crim. L.R. 453 [para. 38].

Maxwell, The Interpretation of Statutes (12th Ed.), p. 240 et seq. [para. 43].

Perkins, Rollin, Criminal Law [paras. 9, 47].

Smith and Hogan, Criminal Law (4th Ed. 1978), pp. 199 et seq. [para. 38].

Stephens, History of the Criminal Law of England (1883), vol. 2, p. 105 [para. 86].

Williams, Glanville, Criminal Law (2nd Ed.) [paras. 5, 38].

Counsel:

D.N. Abra, for the Crown;

D.A. Cuddy, for the accused.

This case was heard on September 21, 1979, at Winnipeg, Manitoba, before MONNIN, MATAS and HUBAND, JJ.A., of the Manitoba Court of Appeal.

On January 22, 1980, the judgment of the Court of Appeal was delivered and the following opinions were filed:

MONNIN, J.A. - see paragraphs 1 to 19;

MATAS, J.A. - see paragraphs 20 to 55;

HUBAND, J.A., dissenting - see paragraphs 56 to 96.