R. v. Brushett (J.), (2014) 357 Nfld. & P.E.I.R. 289 (NLPC)

• Judge: Porter, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: October 06, 2014
• Jurisdiction: Newfoundland and Labrador
• Citations: (2014), 357 Nfld. & P.E.I.R. 289 (NLPC)

R. v. Brushett (J.) (2014), 357 Nfld. & P.E.I.R. 289 (NLPC);

    1109 A.P.R. 289

MLB headnote and full text

Temp. Cite: [2014] Nfld. & P.E.I.R. TBEd. NO.017

Her Majesty the Queen v. Joy Brushett

(Docket No. 0814A00092)

Indexed As: R. v. Brushett (J.)

Newfoundland and Labrador Provincial Court

Porter, P.C.J.

November 5, 2014.

Summary:

The accused was charged with having assaulted Walsh with a beer bottle.

The Newfoundland and Labrador Provincial Court found the accused guilty.

Criminal Law - Topic 39.11

General principles - Mens rea or intention - Foreseeability - General - [See Criminal Law - Topic 1416 ].

Criminal Law - Topic 1411

Offences against person and reputation - Assaults - Intention or mens rea - [See Criminal Law - Topic 1416 ].

Criminal Law - Topic 1416

Offences against person and reputation - Assaults - Assault with a weapon - The accused was charged with having assaulted Walsh with a beer bottle - The incident occurred on the dance floor of a crowded bar - Someone had tapped the accused on the back - She assumed that it was Murphy, who had been bothering her earlier - Without looking behind her, the accused swung her arm back behind her - She had a beer bottle in her hand - She struck Walsh in the face with the beer bottle - The accused said she was not trying to hit Walsh, but that she swung her arm around behind her, without looking, to get whoever it was that had poked her in the back away from her - The Newfoundland and Labrador Provincial Court found the accused guilty of assault with a weapon - The court stated that "It is objectively foreseeable that swinging one's arm on a crowded dance floor, without at first checking to see if the move could be completed without coming into contact with someone else, would risk striking another person on the dance floor. It is also objectively foreseeable that holding a beer bottle while doing so risks causing an injury to the recipient of the blow".

Cases Noticed:

R. v. A.D.H. (2013), 444 N.R. 293; 414 Sask.R. 210; 575 W.A.C. 210; 2013 SCC 28, refd to. [para. 41].

R. v. Burden, [1981] B.C.J. No. 1259 (C.A.), refd to. [para. 42].

R. v. Bartlett (1989) (1989), 79 Nfld. & P.E.I.R. 143; 246 A.P.R. 143 (Nfld. T.D.), refd to. [para. 43].

R. v. D.D., [1993] N.W.T.J. No. 59 (S.C.), refd to. [para. 45].

R. v. Godin (J.A.), [1994] 2 S.C.R. 484; 168 N.R. 193; 147 N.B.R.(2d) 321; 375 A.P.R. 321, refd to. [para. 46].

R. v. Dewey (M.R.) (1998), 232 A.R. 143; 195 W.A.C. 143; 21 C.R.(5th) 232 (C.A.), refd to. [para. 47].

R. v. Emans (A.) (2000), 135 O.A.C. 338 (C.A.), refd to. [para. 51].

R. v. A.E. - see R. v. Emans (A.).

R. v. Paice (C.D.J.), [2005] 1 S.C.R. 339; 332 N.R. 159; 262 Sask.R. 171; 347 W.A.C. 171, refd to. [para. 52].

R. v. Sullivan (I.) (2011), 303 Nfld. & P.E.I.R. 272; 941 A.P.R. 272 (N.L.C.A.), refd to. [para. 53].

R. v. D.M.I. (2009), 478 A.R. 288; 2009 ABPC 127, refd to. [para. 55].

R. v. Divina (J.I.), [2008] A.R. Uned. 273; 2008 ABPC 98, refd to. [para. 57].

Counsel:

A. Manning, for the Crown;

M. Evans, Q.C., for the accused.

This matter was heard on August 26 and October 6, 2014, before Porter, P.C.J., of the Newfoundland and Labrador Provincial Court, Judicial District of Grand Bank, who delivered the following decision on November 5, 2014.