Accident and Mistake

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General Principles

The defences of accident or mistake will have different meaning depending on the context.

Generally, an accident is a "mishap or untoward event not expected or designed", or "unforeseen contingency or occurrence".[1]

Most typically accident means that the accused did not mean to perform the actus reus or that the consequences of the actus reus were unintended.[2]

The effect in law is that the mens rea is not present. This is distinctive from mistake which occurs in “the realm of perception”.[3]

Burden
Once the accused establishes there is an "air of reality" to the defence of accident or mistake, the crown must disprove the availability of the defence beyond a reasonable doubt. [4]

General or Specific Intent Offences
The meaning of accident varies depending on the type of charge.[5] Where it is a specific intent offence, an accident relates to a denial of voluntariness of the act or denial of intention to cause the outcome. For a general intent offence, an accident requires that the act was unexpected and by chance that was not foreseeable. [6]

  1. R v Whitehorne 2005 CanLII 34553 (NLPC)
    R v Hill, 1973 CanLII 36, [1975] 2 SCR 402, (1974) 14 CCC (2d) 505 (SCC) at p. 510
  2. R v Tatton, 2014 ONCA 273 (CanLII), at para 24
    R v Mathisen, 2008 ONCA 747 (CanLII), 239 CCC (3d) 63, at para 70
  3. Whitehorne, supra
  4. R v Sutherland, 1993 CanLII 6614 (SK CA), (1994) 84 CCC (3d) 484 (Sask. C.A.) per Vanscise, J.A., at pp. 497-498
  5. see Intention#Specific and General Intent
  6. Criminal Pleading & Practice, Ewaschuck, (2nd Edition) at para 21.0030
    R v Mathisen, 2008 ONCA 747 (CanLII) at para 70

See Also