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Not guilty verdict in Ellwood Epps accidental shooting

February 17, 2016 Leave a comment

In Arms, I cited several examples that illustrate the contrast between the United States and Canada in handling firearms accidents. One case I cited was that of Peter Arnold, of MacTier, Ontario, a matter which at the time (as I noted) was still before the courts. Because in Canada little information is released before a trial, to ensure fairness, few details were available.

In the United States, accidents often do not lead to any charges. “Accidents happen,” the law declares, “and accidents are accidental.” It seems these things are simply not seen as criminal matters.

In Canada, on the other hand, such accidents almost always lead to a charge of careless use of a firearm. This charge is as close as we come to absolute liability in Canadian criminal law: if an accident has in fact occurred then we have prima facie carelessness, and it would seem the Crown’s mens rea burden is very low. Translating from the Latin, this means that if your gun goes off by accident, you would seem to be all but completely fucked.

Peter Arnold’s case is a particularly interesting example of the readiness of Canadian police to lay a careless use charge. Arnold’s rifle, a Mauser 98, had a live round stuck in the chamber, which Arnold was unable to remove. He partially disassembled the rifle, put it in its case, and then took it in to a gunsmith at Ellwood Epps, near Orillia.

Arnold was apparently unaware that in its partly disassembled state, his Mauser 98 would fire when the safety was released, as there was nothing to block the firing pin’s fall. This occurred, and another man was seriously wounded.

Police promptly charged Arnold with careless use of a firearm, possession of a loaded firearm causing bodily harm, and transporting a loaded firearm.

His trial has been somewhat less prompt; it has taken 2-1/2 years to be settled. But today, a judge dismissed the charges against Arnold on the grounds that the Crown could not make out the required elements of carelessness.

This is an entirely sensible outcome. The fact of the matter is that in the unusual and inherently dangerous circumstances Arnold found himself in, the only safe course of action would be to take the rifle in to a gunsmith. It seems the Crown simply failed to prove that Arnold had acted carelessly. A mistake of fact (not knowing the rifle would fire when the safety was released) hardly meets the threshold of criminal recklessness. The court recognized that in inherently dangerous situations, people can be hurt even when all involved take care.

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