2012 QCCA 2318, 2012 QCCA 2318

Joseph c. R. 2012 QCCA 2318 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-004535-090 (500-01-013984-080) DATE: December 20, 2012 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. JACQUES R. FOURNIER, J.A. CLÉMENT GASCON, J.A. KEDRON JOSEPH APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT [ 1 ] THE COURT – Ruling on the appeal from a judgment of the Court of Quebec, District of Montreal, Criminal Division, rendered on November 16, 2009 by the Honourable Pierre E. Labelle, finding the appellant guilty of aggravated assault contrary to

section 268 of the Criminal Code . [ 2 ] The parties having requested a facilitation conference in criminal matters, the appeal proceeded without a hearing. [ 3 ] According to the evidence presented at trial and accepted by the trial judge, including the testimony of the complainant, the facts of the case can be summarized as follows. Essentially, during the course of an argument, the appellant poured the contents of a bottle of nail polish remover on the victim. He then lit a marijuana joint while he was a few feet away from the victim and partially turned away from her.

The spark from the lighter caused the fumes from the liquid to ignite, thereby setting the victim on fire. As a result, the victim suffered serious injuries. [ 4 ] The parties agree that the trial judge erred in finding the appellant guilty of aggravated assault according to

section 268 of the Criminal Code , having concluded that the consequences of lighting the joint, being that the victim would be set on fire, were objectively foreseeable. [ 5 ] The Court is in agreement. In light of the evidence before the trial judge, the requisite intent for aggravated assault was not proven beyond a reasonable doubt. However, the requisite intent for the lesser and included offence of assault was. FOR THESE REASONS, THE COURT: [ 6 ] GRANTS the appeal; [ 7 ] SETS ASIDE the verdict of guilty rendered on November 16, 2009 by the Honourable Pierre E. Labelle, j.c.q.; [ 8 ] SUBSTITUTES a conviction on the lesser and included offence of assault, contrary to section 265(1)

c) of the Criminal Code . NICOLE DUVAL HESLER, C.J.Q. JACQUES R. FOURNIER, J.A. CLÉMENT GASCON, J.A.

Mtre Clemente Monterosso CLÉMENT MONTEROSSO AVOCAT For the appellant Mtre Dennis Galiatsatos DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the respondent