R. v. MacNeil, (1976) 16 N.S.R.(2d) 366 (CA)

• Judge: MacKeigan, C.J.N.S., Cooper and Macdonald, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 15, 1976
• Jurisdiction: Nova Scotia
• Citations: (1976), 16 N.S.R.(2d) 366 (CA)

R. v. MacNeil (1976), 16 N.S.R.(2d) 366 (CA);

    16 A.P.R. 366

MLB headnote and full text

R. v. MacNeil

Indexed As: R. v. MacNeil

Nova Scotia Supreme Court

Appeal Division

MacKeigan, C.J.N.S., Cooper and Macdonald, JJ.A.

July 2, 1976.

Summary:

This case arose out of a charge of break and enter and a charge of rape. The complainant alleged that the accused entered her apartment at 6:00 a.m. and raped her. The complainant alleged that she consented to acts of intercourse because of fear of bodily harm. The accused did not use threats or force. The trial judge sitting with a jury convicted the accused of both charges.

On appeal to the Nova Scotia Court of Appeal the appeal was allowed and the convictions were set aside. The Nova Scotia Court of Appeal reviewed the trial judge's charge to the jury and held that the trial judge failed to explain to the jury the theory of the defence. The Nova Scotia Court of Appeal held that such omission constituted a non-direction amounting to a misdirection.

The Nova Scotia Court of Appeal stated that the Crown in a rape trial must show that the accused intended to have sexual intercourse with a woman with the knowledge on the part of the accused that she was not consenting to it - See paragraphs 19 to 33.

Criminal Law - Topic 652

Sexual offences - Corroboration - Jury charge respecting dangers of uncorroborated evidence of a complainant - Criminal Code, s. 142 - The Nova Scotia Court of Appeal stated that a jury charge respecting uncorroborated evidence of a complainant was in error where the trial judge did not refer to other defences available to the accused which were not connected with the testimony of the complainant - See paragraphs 50 and 51.

Criminal Law - Topic 666

Sexual offences - Rape - Consent - Mens rea of the accused - The Nova Scotia Court of Appeal stated that the Crown in a rape trial must show that the accused intended to have sexual intercourse with a woman with the knowledge on the part of the accused that she was not consenting to it - See paragraphs 19 to 33.

Criminal Law - Topic 667

Sexual offences - Rape - Evidence - Admissibility of a complaint made by the complainant shortly after the alleged crime - Whether the complaint was made at the first reasonable opportunity - The complainant alleged that the accused entered her apartment at 6:00 a.m. and raped her - The complainant went to work at 8:00 a.m. and after questioning by a co-worker she complained to the co-worker that she was raped - The Nova Scotia Court of Appeal stated that the evidence of the co-worker respecting the complaint was inadmissible because the complaint was not made at the first reasonable opportunity - See paragraphs 40 to 46.

Criminal Law - Topic 673

Sexual offences - Rape - Jury charge - The complainant alleged that she consented to acts of intercourse because of fear of bodily harm - The accused did not use threats or force - The trial judge in his charge to the jury did not explain to the jury the theory of the defence - The Nova Scotia Court of Appeal held that such omission constituted a non-direction amounting to a misdirection and quashed the conviction of the accused.

Words and Phrases

Consent ... Extorted by ... Fear of bodily harm - The Nova Scotia Court of Appeal discussed the meaning of the phrase "consent ... extorted by ... fear of bodily harm" as found in s. 143 of the Criminal Code - See paragraphs 19 to 30.

Words and Phrases

Extort - The Nova Scotia Court of Appeal discussed the meaning of the word "extort" as found in s. 143 of the Criminal Code - See paragraphs 19 to 33.

Cases Noticed:

R. v. Jones (1934), 63 C.C.C. 341, folld. [para. 25].

R. v. Bursey (1957), 26 C.R. 167, folld. [para. 26].

R. v. Plummer and Brown (1975), 31 C.R.N.S. 220, folld. [para. 28].

Morgan et al. v. D.P.P., [1975] 2 W.L.R. 913, folld. [para. 30].

R. v. Leary (1975), 31 C.R.N.S. 199, refd to. [para. 33].

R. v. Shaw (1964), 43 C.R. 347, folld. [para. 35].

R. v. Muise (No. 2) (1976), 11 N.S.R.(2d) 222; 23 C.C.C.(2d) 422, folld. [para. 40].

Colpitts v. The Queen, [1966] 1 C.C.C. 140 (S.C.C.), folld. [para. 53].

R. v. Lovering (1948), 6 C.R. 67, folld. [para. 55].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 142 [para. 50]; sect. 143 [para. 19]; sect. 613(1)(b)(iii) [para. 53].

Authors and Works Noticed:

Black's Law Dictionary, 4th Revised Edition [para. 23].

Shorter Oxford English Dictionary [para. 24].

Counsel:

None disclosed.

This appeal was heard by the Nova Scotia Court of Appeal at Halifax, Nova Scotia on June 15, 1976. Judgment was delivered by the Nova Scotia Court of Appeal on July 2, 1976.

The judgment of the Nova Scotia Court of Appeal was delivered by MacDONALD, J.A.