R. v. MacKay, 2005 SCC 79, [2005] 3 SCR 725

                                                 SUPREME COURT OF CANADA

Between:

Her Majesty The Queen

Appellant

and

Jason Daniel MacKay

Respondent

And between:

Jason Daniel MacKay

Appellant

and

Her Majesty The Queen

Respondent

and

Attorney General of Ontario

Intervener

Coram: Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

______________________________

R. v. MacKay, [2005] 3 S.C.R. 725, 2005 SCC 79

Her Majesty The Queen                                                                                  Appellant

v.

Jason Daniel MacKay                                                                                  Respondent

- and -

Jason Daniel MacKay                                                                                     Appellant

v.

Her Majesty The Queen                                                                               Respondent

and

Attorney General of Ontario                                                                          Intervener

Indexed as:  R. v. MacKay

Neutral citation:  2005 SCC 79. 

File No.:  30557.  

2005:  December 15.

Present:  Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

on appeal from the court of appeal for new brunswick

Criminal law — Aggravated assault — Definition of assault — Scope of new trial — Accused charged with aggravated assault — Trial judge instructing jury on definition of assault in s. 265(1) (a) of Criminal Code  but refusing to instruct jury on definition of assault in s. 265(1)(b) — Accused acquitted — Court of Appeal setting aside acquittal because trial judge failed to instruct jury with respect to definition of assault in s. 265(1)(b), and ordering new trial — Whether Court of Appeal erred in restricting scope of new trial to assault as defined in s. 265(1) (b) of Criminal Code .

Statutes and Regulations Cited

Criminal Code , R.S.C. 1985, c. C‑46, s. 265(1) (a), (b).

APPEALS from a judgment of the New Brunswick Court of Appeal (Ryan, Larlee and Richard JJ.A.) (2004), 274 N.B.R. (2d) 302, 718 A.P.R. 302, 188 C.C.C. (3d) 181, [2004] N.B.J. No. 346 (QL), 2004 NBCA 66, setting aside the accused’s acquittal and ordering a new trial.  Accused’s appeal dismissed.

John Henheffer, for the appellant/respondent.

Brian D. Munro, for the respondent/appellant.

Written submissions only by K. Y. Tina Yuen, for the intervener.

The judgment of the Court was delivered orally by

1                                   Charron J. — On appeal from the accused’s acquittal on a charge of aggravated assault, the New Brunswick Court of Appeal held that the trial judge erred in failing to instruct the jury with respect to the definition of assault.  On the facts of this case, the Court of Appeal found it incumbent upon the trial judge to instruct the jury, not only on the definition of assault under s. 265(1) (a) of the Criminal Code , R.S.C. 1985, c. C‑46 , as he had done, but also under s. 265(1)(b) which he had refused to do.  The trial judge effectively excluded any application of the definition under s. 265(1)(b) when he told the jury:

If you are not satisfied beyond a reasonable doubt that Jason MacKay intentionally applied force to Christopher Drane you must find Jason MacKay not guilty.

2                                   The Court of Appeal was also satisfied that the verdict would not necessarily have been the same if the jury had been properly instructed.  Consequently, it ordered a new trial.  However, the Court of Appeal purported to order a new trial on a charge of aggravated assault based solely on the definition of assault in s. 265(1)(b), finding that the accused was entitled to have his acquittal as pronounced by the jury on the s. 265(1)(a) definition.

3                                   Both the Crown and Mr. MacKay appeal from this decision.

4                                   In our view, the Court of Appeal was correct in granting the Crown’s appeal on the basis of reversible error in respect of the definition of assault.  However, it erred in restricting the scope of the new trial.  Sections 265(1)(a) and 265(1)(b) do not create separate offences but simply define two ways of committing the same offence.  Based on its conclusion that the verdict would not necessarily have been the same had the jury properly been instructed on both parts of the definition, the only avenue open to the Court of Appeal was to set aside the verdict of acquittal and order a new trial without restriction.  The scope of the appropriate instruction on the definition of assault at the new trial can only be determined on the basis of the evidence adduced at that new trial.

5                                   In the result, Mr. MacKay’s appeal is dismissed.  The setting aside of the verdict and the order for a new trial are affirmed without restriction as to the scope of the new trial.

Judgment accordingly.

Solicitor for the appellant/respondent:  Attorney General of New Brunswick, Saint John.  

Solicitor for the respondent/appellant:  Brian D. Munro, Saint John.  

Solicitor for the intervener:  Attorney General of Ontario, Toronto.