Case information
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34953
Her Majesty the Queen v. Mackenzie McDonald
(Ontario) (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) |
|---|---|---|
| 2012-12-20 | Close file on Leave | |
| 2012-12-14 | Copy of formal judgment sent to Registrar of the Court of Appeal and all parties | |
| 2012-12-14 | Judgment on leave sent to the parties | |
| 2012-12-13 |
Judgment of the Court on the application for leave to appeal, The application for leave to appeal from the judgment of the Court of Appeal for Ontario, Number C52136, 2012 ONCA 379, dated June 6, 2012, is dismissed without costs. Dismissed, without costs |
|
| 2012-11-13 | All materials on application for leave submitted to the Judges, F Ro Mo | |
| 2012-10-31 | Order on motion to extend time | |
| 2012-10-31 |
Decision on motion to extend time, Reg, to serve and file the applicant's reply to Oct. 18/12 Granted |
|
| 2012-10-31 | Submission of motion to extend time, Reg | |
| 2012-10-18 | Response to motion to extend time, email from John Hale dated Oct. 16/12 (joint with the motion), Completed on: 2012-10-18 | Mackenzie McDonald |
| 2012-10-18 | Motion to extend time, to serve and file the applicant's reply to Oct. 18/12, Completed on: 2012-10-18 | Her Majesty the Queen |
| 2012-10-18 | Applicant's reply to respondent's argument, Completed on: 2012-10-18 | Her Majesty the Queen |
| 2012-10-04 | Respondent's response on the application for leave to appeal, Completed on: 2012-10-04 | Mackenzie McDonald |
| 2012-09-05 | Letter acknowledging receipt of a complete application for leave to appeal | |
| 2012-09-05 | Application for leave to appeal, Completed on: 2012-09-05 | 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 | Applicant | Active |
v.
| Name | Role | Status |
|---|---|---|
| McDonald, Mackenzie | Respondent | Active |
Counsel
Party: Her Majesty the Queen
Counsel
720 Bay Street
10th Floor
Toronto, Ontario
M2N 2K1
Telephone: (416) 326-2383
FAX: (416) 326-4656
Email: lisa.joyal@ontario.ca
Agent
441 MacLaren Street
Suite 200
Ottawa, Ontario
K2P 2H3
Telephone: (613) 236-9665
FAX: (613) 235-4430
Email: rhouston@burkerobertson.com
Party: McDonald, Mackenzie
Counsel
116 Lisgar Street
Suite 101
Ottawa, Ontario
K2P 0C2
Telephone: (613) 695-4253
FAX: (613) 695-8500
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.
Criminal law – Aggravated assault – Consent – Whether the rule in Jobidon extends to legally vitiate consent on a charge of aggravated assault when the force an accused intentionally applies wounds, maims, disfigures, or endangers the life of a complainant, and the risk of bodily harm is reasonably foreseeable.
The Applicant, Mr. McDonald and two friends drove to Kingston from Ottawa to take part in the annual Homecoming weekend festivities at Queen’s University. After spending Saturday evening with friends, Mr. McDonald went to the Subway restaurant to get something to eat. It was almost 2:00 a.m. and the place was packed. Mr. Gibson was in Kingston for the weekend doing renovations at a store. He also went to the Subway restaurant late that night to get something to eat. There were approximately 30 to 40 people in line at the restaurant. Mr. Gibson entered the restaurant and went to the front of the line, taking a position in front of some people who were ahead of Mr. McDonald. Mr. McDonald who had been waiting for approximately 30 minutes, told Mr. Gibson to go the back of the line, but Mr. Gibson ignored him. Mr. McDonald put his right hand on Mr. Gibson’s left shoulder and told him to get to the back of the line. Mr. Gibson grabbed Mr. McDonald’s right arm with both his hands. Mr. McDonald tried to get free but could not as Mr. Gibson would not release his arm. The two men were struggling with each other. Mr. McDonald managed to pull his arm and tuck Mr. Gibson’s head under his right arm in a chokehold while Mr. Gibson wrapped his arms around Mr. McDonald’s waist and held on. Mr. McDonald rotated to face the back of the line and attempted to move Mr. Gibson towards the front door. As Mr. Gibson began to let go, Mr. McDonald released him by lifting up the arm that had been around his head and neck. Mr. Gibson fell backwards, hitting his head on the hard tile floor. Mr. McDonald left the Subway restaurant immediately. He heard later that Mr. Gibson had been seriously injured. Mr. McDonald learned through his friends that the police were trying to identify who had injured Mr. Gibson. Mr. McDonald surrendered himself to the police. He was arrested on a charge of aggravated assault.
Mr. Gibson suffered life-threatening injuries including a fractured skull. He was in a coma for several days and has not regained normal brain functioning. His abilities to speak, read, drive a car and care for his son are compromised. He cannot work. A jury found Mr. McDonald guilty of aggravated assault. The trial judge sentenced him to a period of imprisonment of two years less a day, followed by three years’ probation.
Mr. McDonald’s appeal was allowed. The verdict was set aside and a new trial was ordered.
Lower court rulings
Ontario Superior Court of Justice
Applicant found guilty of aggravated assault
Court of Appeal for Ontario
C52136, 2012 ONCA 379
Appeal allowed; verdict set aside and new trial 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
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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
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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.
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