La défense d'accident vue par la Cour d'appel du Québec

Primeau c. R., 2017 QCCA 1394

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[24]        There is no question that accident is a good defence to the element of intention in murder or to any other offence in which a culpable mental state is an essential element. Accidents are, by definition, not intentional. An accident is not the result of a deliberate choice to engage in specific conduct or to cause a specific result. To the extent that the criminal law allows liability to be found in the absence of such choice it condones constructive liability because it allows responsibility to be attributed in the absence of an essential element. But accident is not only a defence to an element of mens rea.[3]  Accident is also a defence to the actus reus of an offence. What is common between them is that both, but for distinct reasons, preclude proof beyond reasonable doubt of essential elements of an offence.

[25]        For an act to be attributed to the responsibility of a person in the criminal law it must be voluntary. Accidents are, by definition, not voluntary. A voluntary act is the expression of a conscious choice and conscious control by the person who commits it. To this extent the actus reus of an offence includes a mental element. This mental element merges with elements of mens rea but must be distinguished from them. The mental element in the voluntariness, or conscious choice, merges with elements of mens rea in the sense that elements such as intention, knowledge, wilful blindness and recklessness presuppose the exercise of conscious choice. They cannot exist except upon a foundation of conscious choice. What distinguishes the element of conscious choice in the actus reus from the mental element in mens rea is that states of mind such as intention, knowledge, wilful blindness and recklessness define particular types of conscious choice. In addition to proof of a voluntary act the proof of such elements, as required by the substantive law in the definition of specific offences, justifies a verdict that a person is guilty for a conscious choice in the commission of a prohibited act.

[26]        Accident negates the element of conscious choice, or voluntariness, in action as much as it negates specific types of choices as defined in various concepts of mens rea.  Thus a driver who unavoidably strikes a pedestrian who streaks into the road cannot be held criminally responsible for voluntary conduct or fault in the commission of an offence.[4]

[27]        An accident that occurs in the absence of any other unlawful act precludes any criminal liability. This is not a complicated proposition. But the criminal law must also account for accidents that are caused by previously committed offences or accidents that occur during the commission of an unlawful act. The present case concerns the second issue. The theory of the defence was that during (not after) the commission of an assault the gun accidentally discharged and the shot killed the victim.