R. v. Godin, [1994] 2 S.C.R. 484

Her Majesty The Queen Appellant

v.

Jerry Andrew Godin Respondent

Indexed as: R. v. Godin

File No.: 23675.

1994: June 16.

Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for new brunswick

Criminal law ‑‑ Assault causing bodily harm ‑‑ Mens rea ‑‑ Whether intent to wound, maim or disfigure necessary ‑‑ Whether imposing evidentiary burden on accused misplaced burden of proof placed on accused ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 268(1).

Cases Cited

Referred to: R. v. DeSousa, [1992] 2 S.C.R. 944; R. v. Creighton, [1993] 3 S.C.R. 3.

Statutes and Regulations Cited

Criminal Code, R.S.C., 1985, c. C‑46, s. 268(1).

APPEAL from a judgment of the New Brunswick Court of Appeal (1993), 135 N.B.R. (2d) 183, 344 A.P.R. 183, 82 C.C.C. (3d) 44, 22 C.R. (4th) 265, allowing an appeal from conviction by Arseneault Prov. Ct. J. and ordering a new trial. Appeal allowed.

D. Bennett MacDonald, for the appellant.

Gordon W. Kierstead, as amicus curiae.

The judgment of the Court was delivered orally by

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.