Majority
The judgment of the Court was delivered orally by
Cory J.
Cory J. ‑‑ The mens rea required for s. 268(1) of the Criminal Code , R.S.C., 1985, c. C‑46 , is objective foresight of bodily harm. It is not necessary that there be an intent to wound or maim or disfigure. The section pertains to an assault that has the consequences of wounding, maiming or disfiguring. This result flows from the decisions of the Court in R. v. DeSousa, [1992] 2 S.C.R. 944, and R. v. Creighton, [1993] 3 S.C.R. 3.
Further, although the trial judge erred with regard to the requisite intent required for the section, the error benefitted the respondent in that it was more onerous than required.
We respectfully disagree with the majority of the Court of Appeal (1993), 135 N.B.R. (2d) 183, 344 A.P.R. 183, regarding the issue of the burden of proof. The trial judge merely placed an evidentiary burden on the respondent. The ultimate burden remained on the appellant throughout. The trial judge carefully reviewed the evidence and properly concluded that the respondent should be convicted.
The appeal is therefore allowed. The order of the Court of Appeal is set aside and the conviction is restored.
Judgment accordingly.
Solicitor for the appellant: The Attorney General for New Brunswick, Campbellton.
Solicitors appointed by the Court as amicus curiae: McIntyre, Kierstead & Landry, Dalhousie.
Cases cited
- R. v. DeSousa 22231-1992-09-24
- R. v. Creighton 22593-1993-09-09
- 135 N.B.R. (2d) 183 135 N.B.R. (2d) 183