Case information
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30557
Her Majesty the Queen, et al. v. Jason Daniel MacKay, et al.
(New Brunswick) (Criminal) (By Leave)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2006-01-11 | Appeal closed | |
| 2006-01-03 | Transcript received, (45 pages) | |
| 2005-12-16 | Formal judgment sent to the registrar of the court of appeal and all parties | |
| 2005-12-16 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2005-12-15 |
Judgment on the appeal rendered, Ba Bi LeB De F Abe Cha, The appeal from the judgment of the Court of Appeal of New Brunswick, Number 54/03/CA, 2004 NBCA 66, dated August 12, 2004, was heard this day and the following judgment was rendered: Charron J. (orally) – 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. 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 based on the definition of s. 265(1)(b), finding that the accused was entitled to havehis acquittal as pronounced by the jury on the s. 265(1)(a) definition.Both the Crown and Mr. MacKay appeal from this decision. 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. Dismissed |
|
| 2005-12-15 | Acknowledgement and consent for video taping of proceedings, from all parties. | |
| 2005-12-15 |
Hearing of the appeal, 2005-12-15, Ba Bi LeB De F Abe Cha Judgment rendered |
|
| 2005-12-09 | Notice of appearance, Tina Yuen will be appearing. | Attorney General of Ontario |
| 2005-12-02 | Notice of appearance, Brian D. Munro will be appearing. | Jason Daniel MacKay |
| 2005-11-29 | Notice of appearance, John Henheffer will be appearing. | Her Majesty the Queen |
| 2005-11-09 | Book of authorities, Completed on: 2005-11-09 | Attorney General of Ontario |
| 2005-11-09 | Intervener's factum, (rec'd 26 copies), Completed on: 2005-11-09 | Attorney General of Ontario |
| 2005-10-06 | Order on motion to extend time | |
| 2005-10-06 |
Decision on motion to extend time, Ma, AND UPON READING the material filed and upon it appearing that a miscalculation of the time for filing inadvertently occurred, it is ordered: 1. That the time within which the Respondent may serve and file its Factum to the 7th of September, 2005 is extended. 2. That the Respondent is permitted to present oral argument on the hearing of the appeal pursuant to Rule 71(3). Granted |
|
| 2005-10-05 | Submission of motion to extend time, Ma | |
| 2005-10-04 | Order on motion to extend time | |
| 2005-10-04 |
Decision on motion to extend time, to serve and file the respondent Crown's book of authorities to Sept. 9/05, Reg Granted |
|
| 2005-10-04 | Submission of motion to extend time, Reg | |
| 2005-10-03 | Response to motion to extend time, e-mail from Burke-Robertson dated Oct. 3/05, Completed on: 2005-10-03 | Jason Daniel MacKay |
| 2005-09-19 | Motion to extend time, to serve and file the Book of Authorities to Sept. 9/05, Completed on: 2005-09-19 | Her Majesty the Queen |
| 2005-09-16 | Motion to extend time, to file the respondent's factum to Sept. 16/05 (amended motion filed Oct. 5/05), Completed on: 2005-09-16 | Jason Daniel MacKay |
| 2005-09-14 | Order on motion for leave to intervene, (BY BINNIE J.) | |
| 2005-09-14 |
Decision on the motion for leave to intervene, Bi, The motion for leave to intervene of the Attorney General of Ontario, is granted and the applicant shall be entitled to serve and file a factum not to exceed 15 pages in length. No oral argument will be permitted at the hearing of the appeal. The intervener shall not be entitled to raise new issues or to adduce further evidence or otherwise to supplement the record of the parties. Pursuant to Rule 59(1)(a) the intervener shall pay to the appellant and respondent any additional disbursements occasioned to the appellant and respondent by its intervention. Allowed in part |
|
| 2005-09-13 | Submission of motion for leave to intervene, Bi | |
| 2005-09-12 | Response to the motion for leave to intervene, (Letter Form), from Gowlings dated Sept. 9/05, Completed on: 2005-09-12 | Her Majesty the Queen |
| 2005-09-09 | Respondent's book of authorities, (Motion requested), Completed on: 2005-09-09 | Her Majesty the Queen |
| 2005-09-09 | Response to the motion for leave to intervene, e-mail from Burke-Robertson dated Sept. 9/05, Completed on: 2005-09-09 | Jason Daniel MacKay |
| 2005-09-07 | Respondent's factum, Completed on: 2005-09-16 | Jason Daniel MacKay |
| 2005-09-02 | Respondent's factum, (CD-ROM missing - rec'd Sept. 6/05), Completed on: 2005-09-06 | Her Majesty the Queen |
| 2005-09-01 | Appeal perfected for hearing | |
| 2005-08-25 | Motion for leave to intervene, Completed on: 2005-08-25 | Attorney General of Ontario |
| 2005-08-15 | Notice of hearing sent to parties | |
| 2005-08-11 |
Appeal hearing scheduled, 2005-12-15 Judgment rendered |
|
| 2005-07-29 | Order on motion to extend time | |
| 2005-07-29 |
Decision on motion to extend time, to serve and file the appellant's factum and book of authorities to July 12/05, Reg Granted |
|
| 2005-07-29 | Submission of motion to extend time, Reg | |
| 2005-07-28 | Response to motion to extend time, e-mail from Gowlings dated July 27/05, Completed on: 2005-07-28 | Her Majesty the Queen |
| 2005-07-22 | Motion to extend time, to file the appellant's factum and book of authorities to July 12/05, Completed on: 2005-07-22 | Jason Daniel MacKay |
| 2005-07-15 | Order on motion to extend time | |
| 2005-07-15 |
Decision on motion to extend time, to serve and file the appellant's factum to July 7, 2005 and the appellant's book of authorities to July 8, 2005, DeRg Granted |
|
| 2005-07-15 | Submission of motion to extend time, DeRg | |
| 2005-07-14 | Response to motion to extend time, e-mail from Burke-Robertson dated July 14/05, Completed on: 2005-07-14 | Jason Daniel MacKay |
| 2005-07-14 | Motion to extend time, to file the appellant's factum to July 7/05 and the book of authorities to July 8/05, Completed on: 2005-07-14 | Her Majesty the Queen |
| 2005-07-11 | Appellant's book of authorities, (extension to July 12/05 requested), Completed on: 2005-07-22 | Jason Daniel MacKay |
| 2005-07-11 | Appellant's factum, CD ROM rec'd July 22/05, Completed on: 2005-07-22 | Jason Daniel MacKay |
| 2005-07-08 | Appellant's book of authorities, Completed on: 2005-07-14 | Her Majesty the Queen |
| 2005-07-07 | Appellant's factum, CD rec'd Sept. 26/05, Completed on: 2005-07-14 | Her Majesty the Queen |
| 2005-06-30 | Appellant's record, (joint record of the appellant and respondent - certificate of counsel of Mr. MacKay rec'd July 11/05), Completed on: 2005-06-30 | Her Majesty the Queen |
| 2005-04-13 | Notice of appeal, Completed on: 2005-04-13 | Jason Daniel MacKay |
| 2005-04-12 | Notice of appeal, Completed on: 2005-04-12 | Her Majesty the Queen |
| 2005-04-06 | Letter advising the parties of tentative hearing date and filing deadlines (Leave granted) | |
| 2005-03-18 | Judgment on leave sent to the parties | |
| 2005-03-17 |
Judgment of the Court on the application for leave to appeal, The applications for leave to appeal from the judgment of the Court of Appeal of New Brunswick, Number 54/03/CA dated August 12, 2004, are granted. Granted |
|
| 2005-03-17 |
Judgment of the Court on the application for leave to appeal, The applications for leave to appeal from the judgment of the Court of Appeal of New Brunswick, Number 54/03/CA dated August 12, 2004, are granted. Granted |
|
| 2005-03-17 |
Decision on motion to extend time to file and /or serve the leave application, The application for an extension of time is granted. Granted |
|
| 2005-01-31 | All materials on application for leave submitted to the Judges, (second application), Ma F Abe | |
| 2005-01-31 | Submission of motion to extend time to file and/ or serve the leave application, Ma F Abe | |
| 2005-01-19 | Respondent's response on the application for leave to appeal, Completed on: 2005-01-19 | Her Majesty the Queen |
| 2004-12-30 | Letter acknowledging receipt of a complete application for leave to appeal | |
| 2004-12-23 | Motion to extend the time to file and or serve the application for leave to appeal, (included in Leave Application), Completed on: 2004-12-23 | Jason Daniel MacKay |
| 2004-12-23 | Application for leave to appeal, (Second Application - joint with motion to extend time), Completed on: 2004-12-30 | Jason Daniel MacKay |
| 2004-12-22 | Correspondence received from, B.D. Munro (by fax) re: second leave application to be filed Dec. 23/04 | Jason Daniel MacKay |
| 2004-12-20 | All materials on application for leave submitted to the Judges, Ma F Abe | |
| 2004-12-08 | Respondent's response on the application for leave to appeal, (Letter Form), from B. Munro dated Dec. 8, 2004 re: does not oppose any ruling granting leave; however, will be filing a separate application within 2 weeks - fax copy, Completed on: 2004-12-08 | Jason Daniel MacKay |
| 2004-12-03 | Correspondence received from, B. Munro dated Dec. 3, 2004 (fax copy) re: will file an application for leave to appeal on behalf of the respondent | Jason Daniel MacKay |
| 2004-10-15 | Letter acknowledging receipt of a complete application for leave to appeal | |
| 2004-10-12 | Application for leave to appeal, Completed on: 2004-10-15 | Her Majesty the Queen |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| Her Majesty the Queen | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| MacKay, Jason Daniel | Respondent | Active |
And Between
| Name | Role | Status |
|---|---|---|
| MacKay, Jason Daniel | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Her Majesty the Queen | Respondent | Active |
Other parties
| Name | Role | Status |
|---|---|---|
| Attorney General of Ontario | Intervener | Active |
Counsel
Party: Her Majesty the Queen
Counsel
City Hall
15 Market Square, 4th Floor
Saint-John, New Brunswick
E2L 1E8
Telephone: (506) 658-2580
FAX: (506) 658-3061
Email: john.henheffer@gnb.ca
Agent
2600 - 160 Elgin St
P.O. Box 466, Stn "D"
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 788-3433
Email: henry.brown@gowlings.com
Party: MacKay, Jason Daniel
Counsel
Saint-John, New Brunswick
E2L 2G3
Telephone: (506) 657-6989
FAX: (506) 693-6216
Agent
70 Gloucester Street
Ottawa, Ontario
K2P 0A2
Telephone: (613) 566-2058
FAX: (613) 235-4430
Email: rhouston@burkerobertson.com
Party: Attorney General of Ontario
Counsel
720 Bay Street, 10th Floor
Toronto, Ontario
M5G 2K1
Telephone: (416) 326-2506
FAX: (416) 326-4656
Agent
70 Gloucester Street
Ottawa, Ontario
K2P 0A2
Telephone: (613) 566-2058
FAX: (613) 235-4430
Email: rhouston@burkerobertson.com
Summary
Keywords
None.
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
The facts of this case have been taken from the reasons of the Court of Appeal. On April 2, 2002, the victim was riding his bicycle, heading for a Tim Hortons drive thru. At the same time, the Respondent, Jason Daniel MacKay, was driving his recently purchased motorcycle for the first time. He did not have a licence to drive a motorcycle.
Two incidents passed prior to the very severe injuries suffered by the victim at Tim Hortons. The victim testified that the Respondent's motorcycle nearly clipped the front wheel of his bicycle at the exit of an Esso gas bar. There was independent evidence that words were spoken between the two as a result. The victim said that further on, after driving his bicycle across the parking lot of a McDonald's fast food outlet, the Respondent swerved his motorcycle at him but he managed to get out of the way. There was independent evidence supporting, in some measure, the accounts of the two incidents.
Subsequently, the victim testified that he was proceeding through the parking lot of the Tim Hortons drive thru when he heard a motorcycle engine. He turned and saw a motorcycle coming directly at him. He said he put his foot down to stop his bicycle and get out of the way. The motorcycle struck him on his left side and drove away. He spent nine days in the hospital suffering from a bruised left lung, rib fractures and a laceration to his left thigh. The Respondent testified that he entered the drive thru parking lot looking for the victim, to identify himself to him. While looking for him, he glanced to his right and on turning to look ahead, he began to accelerate when the impact occurred. The Respondent drove on. When he looked over his left shoulder, he saw the bicycle and thought he saw someone, possibly the victim, running after him. He said he panicked and left the scene.
The Respondent was charged with committing an aggravated assault, contrary to s. 268(2) of the Criminal Code, R.S.C. 1985, c. C-46. A jury before Glennie J. of the Court of Queen's Bench of New Brunswick acquitted the Respondent. The Court of Appeal of New Brunswick allowed the appeal and ordered a new trial, limited to assault as defined in s. 265(1)(b) of the Code.
Lower court rulings
Court of Queen’s Bench of New Brunswick
S/CR/15/02
Applicant acquitted by jury of aggravated assault contrary to s. 268(2) of the Criminal Code
Court of Appeal of New Brunswick
54/03/CA, 2004 NBCA 66
Appeal allowed; verdict of acquittal set aside; new trial on assault, as defined under s. 265(1)(b) of the Criminal Code, ordered
Filed documents
The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.
Downloadable PDFs
Not available
Related links
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
Downloadable PDFs
Not available
Related links
The condensed books of the appellant, the respondent and the intervener will be posted here upon receipt of the electronic version, 2 days prior to the scheduled appeal hearing. You may also obtain copies of condensed books by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a condensed book or want permission to use a condensed book, please contact the author of the condensed book directly. Their contact information appears on the first page of each condensed book.
Downloadable PDFs
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