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| Patrick Ducharme |
In this defence the evidence needs to focus on the conduct of the person charged. Did, for example, the actions of the accused appear to be conscious and voluntary? Or, in contrast, were the actions of the accused immediate, reflexive, occurring on the sudden, accidental, and/or unintended?
If his actions can be properly characterized as an unintended act, that act, even if it causes catastrophic harm to another or others, still may present a viable defence because our criminal law generally only punishes people for their intentional conduct, not their accidental or unintended conduct.
However, even a true accident does not always amount to a complete defence. We do have crimes that relate to negligence or failure to act or failure to provide necessaries of life.1 The interaction between the concept of an accident and the concept of negligence is a difficult area of criminal law. Virtually all offences require proof of an intentional act. But there are some exceptions, and they will be discussed below.
The offence of manslaughter is a good example to consider. The accused may be charged with first degree murder. The jury may find that he did not engage in the planning and deliberation required for first-degree murder, they may even find that the accused did not have the intention to cause death to support a conviction for second degree murder.
However, the accused may still be guilty of the charge of manslaughter if the accused is found to have committed an act that is unlawful, that is, causing another person to die, even though that death was unintended and accidental. In this circumstance the unintended act that led to the death is only a partial defence. It may present a defence to charges of the first or second degree murder, but not a defence to the lesser and included offence of manslaughter.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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