The Defence of Accident
The defence of accident
varies with the nature of the crime. In Criminal Pleading & Practice,
Ewaschuck (2nd Edition), the Learned
Justice states as follows:
The “so-called” defence of accident varies depending
on the nature of the crime. Where the crime involves specific intent, the
defence of accident may relate to a denial of a voluntary act causing the prohibited
harm or to a denial of intent or purpose to cause the prohibited harm. Where the
crime involves general intent or recklessness, the defence of accident
generally relates to an unexpected or chance event so unreasonably foreseeable
that it exculpates the accused from any blameworthy conduct preceding the
accident.
In the criminal law, the term
“accident” is used in two senses: an unintended act and an unintended
consequence. The former relates to the conduct or actus reus element of an offence, the
latter to the fault or mens
rea element.
R.
v. Ward, 2016 ONCA 984;
R.
v. Mathisen, (2008)
2008 ONCA 747 (CanLII), O.J. No. 4382
As with any viable defence, there
is no onus of proof on the accused to prove that his conduct was accidental. Where there is an
air of reality to the defence, the onus is on the Crown to prove beyond a
reasonable doubt that the defence of accident could not succeed.
R.
v. Sutherland, (1994)
1993 CanLII 6614 (SK CA), 84 CCC (3d) 484 (Sask. C.A.),
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