Bergstrom v. The Queen, [1981] 1 SCR 539

Supreme Court of Canada

Bergstrom v. The Queen, [1981] 1 S.C.R. 539

Date: 1981-05-11

George John Bergstrom Appellant;

and

Her Majesty The Queen Respondent.

1980: December 9; 1981: May 11.

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

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Criminal law—Defence—Compulsion—Charge of rape—“Assisting in rape” precluded from the defence but not rape—Appellant claiming duress—Whether or not rape excluded from defence of compulsion—If available, whether or not sufficient evidence to put defence to the jury—Criminal Code, R.S.C 1970, c. C-34, s. 17.

This appeal concerned the application of the defence of compulsion or duress, provided in s. 17 of the Criminal Code, to rape. Appellant, who admitted the acts of intercourse against the complainant’s will and without her consent, gave no evidence at trial but found an evidentiary base for his defence in the evidence of other witnesses and a long statement that he made to the police. Complainant had been first raped by one Durack, while appellant waited near the car, and then by appellant. Although appellant had initially refused to have intercourse with the complainant when ordered to do so by Durack, he complied because he said he feared for his life. Durack was a violent man and armed with a knife. Complainant testified that she was forced to perform further sexual acts with both men. Despite the relative proximity of a farm-house which could have provided both appellant and complainant with assistance, appellant did not take advantage of his opportunities to escape—at least two and perhaps three rapes occurred.

The case raised two clear issues. Did the defence of compulsion described in s. 17 of the Criminal Code apply to rape or did the section’s wording exclude it, and assuming the defence did apply, was there sufficient evidence in this case to warrant the putting of the defence to the jury?

Held: The appeal should be dismissed.

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The defence of compulsion applied to all criminal offences, except those excluded, and only became effective to protect an accused where it could be shown that the accused had in fact actually committed the offence.

“Assisting in rape” was among the excepted offences; rape was not specifically mentioned. The expression “assisting in rape” was descriptive of participation in rape and could exclude, and in its use in the Criminal Code was intended to exclude, the crime of rape whether committed by one acting as ravisher or by one who participated by assisting. As rape was a crime where certain persons could only be convicted as aiders, the words “assisting in rape” broadened, rather than restricted, the exclusion and brought into the exclusion from the defence those whose liability depended upon assisting in the commission of rape, as well as the rapers in fact. The phrase was never intended to include persons assisting to the exclusion of persons actually committing the crime of rape.

The meaning of the words “assisting in rape” was not strained by this interpretation because they were used in the sense that they “import[ed] either active participation or cooperation, or intended encouragement”.

R. v. Folkes and Ludds (1832), 1 Mood. 354; R. v. Gray and Wise (1835), 7 Car. & P. 164; R. v. Crisham (1841), Car. & M. 187; R. v. Lord Baltimore (1768), 4 Burr. 2179; R. v. Audley (Lord) (1631), St. Tr. 401; R. v. Ram and Ram (1893), 17 Cox C.C. 609; R. v. Eldershaw (1828), 3 Car. & P. 396, referred to.

APPEAL from a judgment of the Court of Appeal for Manitoba[1], allowing an appeal from the judgment of Wright J. and directing a new trial. Appeal dismissed.

Norm Cuddy, for the appellant.

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

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The judgment of the Court was delivered by

MCINTYRE J.—This appeal from a decision of the Court of Appeal for Manitoba (Monnin and Matas JJ.A., Huband J.A. dissenting) raises questions concerning the application of the defence of compulsion or duress, provided for in s. 17 of the Criminal Code.

The facts of the case are not seriously disputed. The complainant, a young woman then aged twenty-five, went alone to a beer parlour in a Winnipeg hotel. She wished to hear a band which performed there. She arrived about 8:30 or 9:00 p.m. and shortly thereafter was asked to join a group at another table. The group, including the complainant, remained in the beer parlour until it closed about 1:30 a.m. They then left for a party at a private apartment in Winnipeg. The appellant and a man named Durack were also at the party which lasted until about 4:30 a.m. During this affair, as in the beer parlour earlier, there was a good deal of drinking. Shortly before departure from the party, there was some discussion between Bergstrom and the complainant about driving the complainant home. Bergstrom agreed to take the complainant to her home in his car but, because he did not have a driver’s licence, Durack was to drive as far as his (Durack’s) home where he would get out and leave Bergstrom to take the complainant the remainder of the way. The journey commenced but, instead of driving to his home, Durack drove the car out of the city to a point some twenty miles north of Winnipeg. The complainant passed out during the course of the journey, presumably because of the amount of liquor she had consumed. Bergstrom, in a statement to the police, said that he had protested to Durack when he realized that he was not driving to his home as planned, and that when questioned on the subject a second time Durack produced a knife and ordered him to be quiet.

Durack drove off the road passing nearby a farm-house and stopped in a field. He ordered the complainant, now reawakened, to get into the back seat of the car and over her protests and after threatening her with violence he terrorized her into submitting to intercourse. While this was going on,

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Bergstrom was outside the car. When Durack was finished he ordered Bergstrom to have intercourse with the complainant. Bergstrom, in his statement, said he refused to indulge in sexual intercourse with the complainant but he feared Durack would use his knife and complied with Durack’s demand that he do so. On Durack’s orders, the complainant performed fellatio on both men. Each man had intercourse against her will and, while her memory is vague as to detail and the sequence of events, according to her evidence there were further acts of intercourse and there was no denial of them by either accused. Despite her screams and her request to Bergstrom on at least one occasion for help, the rapes were completed and no attempt was made at the trial to assert that the acts of intercourse occurred with the consent of the complainant. It was common ground that she did not consent and her resistance and protests were overcome by her fear.

The attacks upon the complainant all took place in the back seat of the car. While Durack was raping the girl, Bergstrom was either in the front seat or, on one occasion at least, out of the car. There was a farm-house in the vicinity. How far it was across the field is not revealed in the evidence. Bergstrom said in his statement, however, that he had left the car door open when Durack was raping the girl so that her screams might be heard. No lights came on in the house, and he ‘guessed’ that its occupants had not heard. Bergstrom expressed fear of Durack and said that he was a dangerous man who had knifed a friend of Bergstrom and who, at the party that evening, had threatened another person with a knife. Bergstrom said he feared for his life at the hands of his violent associate, but it is nonetheless clear that he had no less than two and probably three clear chances to escape and the relative proximity of the farm-house could have provided a source of assistance, not only for himself but for the complainant. When these events were terminated the complainant was driven home and the two men left her.

Bergstrom and Durack were arrested. Durack pleaded guilty to rape and was sentenced to four

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years in the penitentiary. Bergstrom was charged with rape and acts of gross indecency. He was tried by judge and jury and acquitted on both counts. He admitted the acts of intercourse against the complainant’s will and without her consent. His sole defence was that of compulsion under s. 17 of the Criminal Code. He gave no evidence at his trial, but found an evidentiary base for his defence in the evidence of other witnesses and on a long statement he made to the police, which was put in evidence by the Crown.

This case raises two clear issues. Does the defence of compulsion described in s. 17 of the Criminal Code apply to the crime of rape or is it excluded by the wording of the section and, assuming the defence does apply, was there in this case sufficient evidence to warrant the putting of the defence to the jury?

In the Court of Appeal the majority were of the opinion that there was not sufficient evidence to warrant the putting of the defence of compulsion under s. 17 of the Criminal Code to the jury, and they allowed the appeal and directed a new trial finding it unnecessary to deal with the first question raised. Huband J.A., dissenting, was of the view that the trial judge made no error in the matter and would have dismissed the Crown’s appeal.

I will consider first the question of whether the defence of compulsion is open on a charge of rape. Section 17 of the Code provides for the defence in these words:

17. A person who commits an offence under compulsion by threats of immediate death or grievous bodily harm from a person who is present when the offence is committed is excused for committing the offence if he believes that the threats will be carried out and if he is not a party to a conspiracy or association whereby he is subject to compulsion, but this section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, assisting in rape, forcible abduction, robbery, causing bodily harm or arson.

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The defence applies, in accordance with the conditions expressed in the section, to all criminal offences except those which are excluded. It can only become effective to protect an accused when it can be shown that the accused has, in fact, actually committed the offence. Where it applies, the commission of the offence is excused. Bergstrom was charged with the commission of rape and there was ample evidence drawn from his own statement and from the testimony of the complainant to establish beyond any reasonable doubt that he committed rape. His sole defence rests upon the assertion that he carried out the crime under compulsion by threats of immediate death or grievous bodily harm from Durack who was present at the time. Before any examination need be made of the evidence of threats, fear, and the existence of compulsion in fact, it must be decided if the section has any application to this case.

Rape is not mentioned specifically as one of the excepted offences in s. 17. What is excepted is described as “assisting in rape”. The meaning which may be attributed to those words must be determined. Counsel for the appellant pointed out that there is no offence described in those terms under the criminal law of Canada and, therefore, the words were not of significance. Counsel for the Crown contended that the words included “rape” and that, as a result, rape was an excepted offence under s. 17 and that the defence under the section could not apply.

The words “assisting in rape” are a curious feature of s. 17. They have appeared in this section and in its predecessors ever since the passing of the first Criminal Code of Canada in 1892. They were taken directly from the Draft Code of 1879 which was an appendix to the Report of the Royal Commission Appointed to Consider the Law Relating to Indictable Offences in the United Kingdom, which made its report in 1879. Forming as they do part of the statute, a meaning must be attributed to them because it cannot be presumed that they are, or were intended to be, meaningless. What then did the words “assisting in rape” mean when they were employed in the Draft Code and

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later enacted in law in the Criminal Code of Canada in 1892?

I have been able to find little Canadian authority to assist me in the resolution of this question. Scarcely more has been uncovered from English sources, but it is clear that in England in the nineteenth century, during a period in which the drafting of the Draft Code occurred, the concept of assisting in the commission of rape and the legal consequences of such conduct received attention in the courts. A person against whom a complaint of rape was made could be charged with the crime of rape as the actual perpetrator (principal in the first degree) or, if the facts warranted, he could be charged with aiding and assisting in rape (principal in the second degree). Regardless of how the charge was framed in this respect, he could be convicted of the crime of rape. The law in this particular had been clearly settled for many years. In Hale’s History of the Pleas of the Crown, (1736), vol. 1, at pp. 626-636, the subject is dealt with and it is stated at p. 628:

If A. actually ravish a woman, and B. and C. were present, aiding and abetting, they are all equally principal, and all subject to the same punishment both at common law and since the statute of Westm. 2 de quo infra.

The nineteenth century position is illustrated in three cases: R. v. Folkes and Ludds[2]; R. v. Gray and Wise[3] and particularly R. v. Crisham[4].

The full report of the Crisham case is reproduced below. A marginal note, or headnote, in the following terms provides:

An indictment is good which charges that A. committed a rape, and that B. was present aiding and assisting him in the commission of the felony. In such a case the party aiding may be charged either, as he was in law, a principal in the first degree, or, as he was in fact, a principal in the second degree.

The report continues:

The indictment stated that one Peter M’Donough upon one Bridget Lamb did make an assault, and her the said Bridget Lamb violently, feloniously, and against her will did ravish, &c.; and went on to state that the prisoner

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was present, and feloniously aided and assisted the said Peter M’Donough in the commission of the said felony, contrary to the statute, &c. After a verdict of guilty—

Payne, for the prisoner, moved in arrest of judgment.—The indictment charges the prisoner with aiding and assisting M’Donough in the commission of a rape, contrary to the statute. Now, there not being any statutory provisions applicable to persons aiding and abetting in cases of this nature, I submit that the indictment is wrongly framed. The prisoner, in the absence of any express provision by statute, should have been indicted as at common law; and the indictment should have charged him as a principal, and stated that he, as well as M’Donough, ravished the prosecutor. In Folke’s case, an indictment, charging the prisoner both as principal in the first degree, and as aiding and abetting other men in committing a rape, was held after conviction to be valid on the count charging the prisoner as principal. The statute of 9 Geo. 4, c. 31, which declares, in the 16th section, that every person, convicted of the crime of rape, shall suffer death, makes no specific provision as to aiders and abettors, with reference to that offence. The 7 & 8 Geo. 4, c. 29, and the 7 & 8 Geo. 4, c. 30, make provision for principals in the second degree, with reference to the felonies mentioned in them respectively; but the stat. 9 Geo. 4, c. 31, does not contain any such provision with respect to the offence of rape.

Maule, J.—Then your objection is, that the offence which has been committed is not stated in the indictment.

Payne.—My objection is, that the person is not charged, as he ought to have been, as a principal.

Rolfe, B.—Is he not so charged in the indictment? It alleges that M’Donough committed a rape, and the prisoner aided and assisted him. Is not that another way of saying that the prisoner committed a rape? [Emphasis added.]

Maule, J.—There does not appear to me to be any ground for the objection. It has been already decided that, in a case of this description, the party may be charged according to the fact, or indicted as a principal in the first degree.

The law as propounded in these cases, which recognize no difference between the principal in the first degree and the principal in the second degree, both being equally guilty of the crime charged, became well-settled in England as a part

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of the base upon which the Draft Code was prepared in 1879 and the Criminal Code of Canada was enacted in 1892. In Chitty on Criminal Law, 2nd ed., (1826), vol. 1, the following appears, at p. 255a:

A man may be a principal in one of two degrees. A principal in the first degree is he that is the actor or actual perpetrator of the crime; and in the second degree, he who is present aiding and abetting the fact to be committed. It is a question of law whether a person is guilty as a principal in the first or second degree.

Principals in the second degree were formerly denominated and regarded as only accessaries at the fact. And it seems that he who actually committed the crime was alone guilty as principal, and those who were present aiding and assisting, were but in the nature of accessaries, and could not be put upon their trial until the principal was first convicted. This distinction has, however, been long since exploded, and now the stroke is constructively given by all who consent and who are present at its infliction, and they may be put upon their trial though the actual slayer is neither outlawed nor found guilty. In order, however, to make the aiders and abettors thus highly culpable, three requisites must combine; they must be present—aiding and assisting—with a felonious intention to the felony. [Emphasis added.]

In Archbold’s Criminal Pleading & Practice, 7th ed., (1860), vol. 1, at pp. 66-7, the following appears:

The law, however, recognizes no difference between the offence of the principal in the first degree, and of the principal in the second; both are equally guilty.

And so immaterial is the distinction considered in practice, that if a man be indicted as principal in the first degree, proof that he was present aiding and abetting another in committing the offence, although his was not the hand which actually did it, will support the indictment; and, on the other hand, if he be indicted as principal in the second degree, proof that he was not only present, but committed the offence with his own hand, will support the indictment. Therefore, if A. be indicted for being present, aiding and abetting B. in committing a felony, A. may be convicted, although B. is acquitted.

So, when an offence is punishable by a statute which makes no mention of principals in the second degree,

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such principals are within the meaning of the statute as much as the parties who actually commit the offence; and therefore, in the case of rape, a person may be convicted on an indictment charging him with being present aiding and abetting another who actually committed it. [Emphasis added.]

In Archbold’s Pleading & Evidence in Criminal Cases, 20th ed., (1886), dealing with English law as it stood only a few years before the enactment of the Criminal Code of Canada, an example is given of an indictment charging the crime of rape, at p. 804. Of particular interest is a note which follows the form of the indictment in these terms:

An indictment is good which charges that A. committed a rape, and that B. was present aiding and abetting him in the commission of the felony; for the party aiding may be charged either as, as he was in law, a principal in the first degree, or, as he was in fact, a principal in the second degree. R. v. Crisham, C. & Mar. 187. A general conviction of a defendant charged both as principal in the first degree, and as an aider and abettor of other men in rape, is valid on the count charging him as principal. And on such an indictment, evidence may be given of several rapes on the same woman, at the same time, by the defendant and other men, each assisting the other in turn, without putting the prosecutor to elect on which count to proceed. R. v. Folkes, 1 Mood. C.C. 354; R. v. Gray, 7 C. & P. 164.

The relationship between a principal in the first and in the second degree applied in Canada, as well as England, in the latter part of the nineteenth century: see Clarke’s Criminal Law of Canada, (1872), at p. 97. The modern position in this country is illustrated in R. v. Harder[5]. This case dealt with the sufficiency of an indictment alleging that “he did have carnal knowledge of V.B. a woman who was not his wife without her consent” when the Crown case was that he had not had sexual intercourse with the complainant but had aided others to do so. In allowing the Crown’s appeal and restoring the conviction at trial the majority of the Court, in four separate judgments (Fauteux, Rand, Kellock, Locke JJ., Kerwin C.J. and Taschereau J. agreeing with Fauteux J. and

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Cartwright J. dissenting), reviewed the development of the law on this point and collected and discussed several of the authorities, which are cited above, covering the relationship of the principals in the first and second degrees particularly in reference to rape, and concluded that the law recognizes no difference in criminal culpability and liability between the ravisher and the assister in rape.

It is my opinion that the phrase “assisting in rape”, if not in full and common usage in England in the late nineteenth century, was nevertheless an expression well-known in the law at the time of the drafting of the Draft Code and the enactment of the first Criminal Code of Canada. It was an expression descriptive of participation in rape and could include, and in its use in the Criminal Code was intended to include, the crime of rape whether committed by one acting as ravisher or by one who participated by assisting. In my view the phrase was never intended to include persons assisting to the exclusion of persons actually committing the crime of rape. Therefore, the words so used in s. 12 of the original Code, now s. 17, were thus intended to exclude and did exclude rape, however committed, from the scope of the defence of compulsion.

I do not consider that the view expressed above involves any straining of the meaning of the words employed in the Criminal Code. The word “assisting” is capable of various meanings and one of the most significant involves the element of participation. Reference to standard and authoritative dictionaries will reveal such definitions as “to aid or help, to be present at, to second and support, to further and promote an action or result, and to participate in an activity”. It is interesting to note as well a judicial view on this question expressed in Mensinger v. O’Hara[6], at p. 50, where it was said that “The words ‘assisted, aided and abetted’ import either active participation or co-operation,

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or intentional encouragement”. It is in that sense that the words “assisting in rape” were employed in the Draft Code and in the Criminal Code in s. 17.

The Commissioners who drafted the Draft Code which was submitted to the Parliament of the United Kingdom in 1879 noted in Note A to page 10 of their report in commenting on the defence of compulsion, which they had included in the Draft Code in the same terms which now appear as s. 17 of the Criminal Code, that “there is no doubt on the authorities that compulsion is a defence where the crime is not one of a heinous character”. By the exclusion of “assisting in rape” which was carried forward in the Criminal Code of Canada the Commissioners and the Parliament of Canada recognized that rape was an offence of that heinous character which warranted the exclusion from the defence of compulsion of any participation in its accomplishment. It would be illogical in the extreme to impute an intention to the drafters of the Draft Code and the Criminal Code of Canada to exclude aiders and abettors from reliance on the defence of compulsion while according it to actual ravishers, particularly when the law recognized equal culpability and equal punishment for both.

Why, it may be asked, was it necessary to employ the words “assisting in rape” in respect of that offence in s. 17 of the Code? In my opinion, the answer lies in the peculiar nature of the crime of rape. It is a crime which, as described in the Criminal Code, may only be committed by a male and then only upon a female not his wife. Nonetheless, others may be convicted of rape even though, for legal or physiological reasons, they may be incapable of committing the offence in fact. For example, see R. v. Lord Baltimore[7], women indicted as principals in the second degree; R. v. Audley (Lord)[8], husband convicted for assisting in the rape of his own wife; R. v. Ram and Ram[9], woman indicted for rape as a principal in the second degree for aiding her husband; and see,

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as well, R. v. Eldershow[10] where it was considered that a boy under fourteen could not be found guilty of rape except as a principal in the second degree. It is this feature of rape which distinguishes it from the other offences which are excluded from the defence of compulsion provided for in s. 17 of the Code. In the other offences all persons who have the capacity to attract criminal liability may commit and be convicted of the excluded offences. In rape, however, certain persons can be convicted of rape only as aiders and to exclude from the defence all those who in law could be guilty of and convicted of rape it was necessary to employ the concept of assisting, as it forms the sole basis of guilt for some persons. There can be no doubt in my mind that by including a reference to rape in s. 17 of the Code the Parliamentary intent was to exclude it from the defence. The use of the words “assisting in rape” was designed to broaden, rather than to restrict the exclusion, and to bring into the exclusion from the defence those whose liability depended upon assisting in the commission of rape, as well as the rapers in fact.

Whatever the rationale behind the use of the words in the Criminal Code, it is evident that since their introduction into the Code it has been the view of high legal authority in this country that the words were broad enough to include rape. In the first edition of Crankshaw’s Criminal Code (1894), at p. 13, under the heading “Compulsion by Force”, in a discussion of the effect of the then s. 12, now s. 17, the following appears:

Although the law will not excuse the commission of any of the above excepted offences—such as murder, piracy, rape, arson—done under cumpulsion [sic] by threats even of immediate death, it will be different with a person who is not a free agent physically, but who is subjected—not to threats operating on his mental faculties—but to actual physical force exercised without or against his consent by a third party at the time of the act being done.

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These words, or others of similar import, appeared in subsequent editions of the Code down to the seventh edition published in 1959, and this fact strengthens my view that the words were considered to have the effect of excluding rape from the defence of compulsion.

It is, therefore, unnecessary to consider if there was sufficient evidence of compulsion to leave the case to the jury as, in my view, it was an error in any event to do so. I would accordingly dismiss the appeal and confirm the order of the Court of Appeal for a new trial.

Appeal dismissed.

Solicitor for the appellant: Norm A. Cuddy, Winnipeg.

Solicitor for the respondent: The Attorney General for the Province of Manitoba, Winnipeg.