R. v. Kirby, Till and Coyle, (1977) 5 A.R. 107 (TD)

• Judge: Brennan, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 23, 1977
• Citations: (1977), 5 A.R. 107 (TD)

R. v. Kirby (1977), 5 A.R. 107 (TD)

MLB headnote and full text

R. v. Kirby, Till and Coyle

Indexed As: R. v. Kirby, Till and Coyle

Alberta Supreme Court

Trial Division

Judicial District of Calgary

Brennan, J.

February 23, 1977.

Summary:

This case arose out of a charge against the accused of rape. The accused Kirby raped a woman in her motor vehicle. Just after the rape was completed the accused Coyle and Till entered the vehicle. Coyle "French kissed" the naked woman, who was in the front passenger seat with the rapist. The accused Kirby was charged with rape and Coyle and Till were charged with being parties to the offence of rape.

The Alberta Supreme Court, Trial Division, convicted Kirby of rape, but acquitted Coyle and Till of being parties to the offence.

On the question of whether Coyle was guilty of the included offence of indecent assault founded on his kissing the woman, the Trial Division held that, since the kiss occurred after the rape was completed, it was not part of the offence of rape, notwithstanding that it was an indecent assault - see paragraphs 10 to 18.

Criminal Law - Topic 4452

Procedure - Verdicts - Included offences - Acts severable from offence charged - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 589 - The accused entered a rape victim's car just after she had been raped in it by a friend of the accused - The accused "French kissed" the naked woman, who was in the front passenger seat with the rapist - The accused was charged with being a party to the offence of rape - The accused was found not guilty of rape - The accused was also found not guilty of the included offence of indecent assault founded on his kissing the woman, since the kiss occurred after the rape was completed and was therefore not part of the offence of rape - See paragraphs 10 to 18. (Alberta Supreme Court, Trial Division)

Cases Noticed:

R. v. Ovcaric (1973), 22 C.R.N.S. 26, appld. [para. 14].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 21 [para. 7]; sect. 589 [para. 13].

Counsel:

J.S. Webb, for the Crown;

E.J. McCormick, Q.C., for the accused Kirby;

J.E. Davison, for the accused Coyle;

A.G. Park, for the accused Till.

This case was heard on February 23, 1977, at Calgary, Alberta, before BRENNAN, J., of the Alberta Supreme Court, Trial Division, Judicial District of Calgary.

On February 23, 1977, BRENNAN, J., orally delivered the following judgment: