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 (ie. an error as to the mens rea).[2]
A claim of accident before a jury should be described as going to both the voluntariness of the actus reus as well mens rea of the offence.[3]
The effect in law is that the mens rea is not present. This is distinctive from mistake which occurs in “the realm of perception”.[4]
- 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. [5]
- General or Specific Intent Offences
The meaning of accident varies depending on the type of charge.[6] 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. [7]
- ↑
R v Whitehorne, 2005 CanLII 34553 (NL PC), 32 CR (6th) 86, per Gorman J
R v Hill, 1973 CanLII 36, [1975] 2 SCR 402, (1974) 14 CCC (2d) 505 (SCC), per Dickson J, at p. 510 - ↑
R v Tatton, 2014 ONCA 273 (CanLII), 10 CR (7th) 108, per Pardu JA, at para 24
R v Mathisen, 2008 ONCA 747 (CanLII), 239 CCC (3d) 63, per Laskin JA, at para 70
- ↑ R v Primeau, 2017 QCCA 1394 (CanLII), 41 CR (7th) 22, per Healy JA
- ↑ Whitehorne, supra
- ↑ R v Sutherland, 1993 CanLII 6614 (SK CA), 84 CCC (3d) 484, per Vanscise JA, at pp. 497-498
- ↑ see Intention#Specific and General Intent
- ↑
Criminal Pleading & Practice, Ewaschuck, (2nd Edition) at para 21.0030
Mathisen, supra, at para 70