R. v. MacKay

R. v. MacKay

The trial judge's failure to instruct on s.265(1)(b) was reversible error; the Court of Appeal was correct to set aside the acquittal and order a new trial but erred by limiting the retrial to s.265(1)(b) because both subsections define the same offence, so the new trial must be ordered without restriction.

Citation
2005 SCC 79
Parties
Appellant/respondent: Her Majesty The Queen; Respondent/appellant: Jason Daniel MacKay; Intervener: Attorney General of Ontario
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
15 December 2005
Procedural Posture
Criminal Appeal / Appeal to Supreme Court of Canada From New Brunswick Court of Appeal; Cross Appeals Concerning Acquittal and Scope of New Trial
Outcome
Appeal dismissed; setting aside of verdict and order for a new trial affirmed without restriction.
Legal Topics
Aggravated Assault, Jury Instructions, Scope of New Trial, Definition of Assault S.265(1)(a) and S.265(1)(b)
Source Language
English
Criminal Law Aggravated Assault Jury Instructions Scope of New Trial Definition of Assault S.265(1)(a) and S.265(1)(b)

Case Brief

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Parties

Her Majesty The Queen

Appellant/respondent

Jason Daniel MacKay

Respondent/appellant

Attorney General of Ontario

Intervener

Procedural Posture

Criminal Appeal / Appeal to Supreme Court of Canada From New Brunswick Court of Appeal; Cross Appeals Concerning Acquittal and Scope of New Trial

Legal Issues

  1. 1 Whether the trial judge erred by failing to instruct the jury on the definition of assault in s.265(1)(b) of the Criminal Code
  2. 2 Whether the Court of Appeal erred by restricting the scope of the new trial to assault as defined in s.265(1)(b) only

Ratio Decidendi

The trial judge's failure to instruct on s.265(1)(b) was reversible error; the Court of Appeal was correct to set aside the acquittal and order a new trial but erred by limiting the retrial to s.265(1)(b) because both subsections define the same offence, so the new trial must be ordered without restriction.

Court Disposition

Appeal dismissed; setting aside of verdict and order for a new trial affirmed without restriction.

Orders

  • Accused's appeal dismissed
  • Verdict of acquittal set aside