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| Patrick J Ducharme |
In this form of the defence of accident the court is asked to focus upon the consequences of the accused’s actions. In one recent case thee men were experimenting in the backyard of a cottage just outside the city of Sarnia. They had a metal pipe into which they loaded gun powder. The metal pipe at one end had a “wick” that when lighted would allow the men to run to a safe place some distance away. When the gun powder was ignited it would send a projectile placed at the other end of the pipe to be propelled into the air. At least that was the plan.
They videotaped this foolish escapade. There were several misfires. Each time the wick was lit these playful gentlemen would laugh and run to safety. But their place of safety turned out to be not so safe.
On a few occasions the projectile, in this case a large potato, was propelled harmlessly into the air. On other occasions there was a mini explosion at the end of the pipe equipped with the wick, but there wasn’t enough energy to propel the potato into the air. Each time it did not work, the three friends would “re-load” and try again. None of the three men predicted a serious accident by their conduct. Each later described the circumstances as them “just having fun.”
Their fun ended in tragedy. On the last failed explosion of the gunpowder, it propelled not the potato, but several large pieces of the metal barrel. These pieces struck one of the three men causing him to lose an arm and suffer several other serious injuries to his internal organs, requiring multiple surgeries, including surgical removal of some damaged organs and the repair of others.
The victim of the accident was fortunate that he was not killed. His life will never be quite the same. His ability to work and play is significantly compromised. Not surprisingly, he also suffers from psychological issues that are a direct result of this accident.
The prosecution charged one of the three men with criminal negligence causing bodily harm. The selection of the charge gives some indication that even the prosecution accepted, to a limited extent, that the consequences were unintended. The court eventually accepted the fact that the accused, along with his two friends, had subjected themselves to an accident with unintended consequences and therefore the serious charge of criminal negligence causing bodily harm was dismissed.
At the time of these events criminal negligence causing bodily harm was strictly an indictable offence making a person charged liable to imprisonment in a federal penitentiary for up to ten years. In September 2019, section 221 of the Criminal Code was amended to permit the prosecutor the discretion to proceed by summary conviction rather than by indictment.
Proceeded with summarily, the court may impose a fine of not more than $5,000 or a term of imprisonment not exceeding six months or both. This was one of many amendments made by the Federal government in the fall of 2019, recognizing that some offences, based upon acts that were intentional acts, but not acts with criminal intent should be treated differently, perhaps more humanely. The acts were intentional, but, with unintended consequences.
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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