Ontario Criminal


Accused’s movements while intentionally assaulting complainant caused gun to discharge

Accused charged with attempted murder, aggravated assault, discharging firearm with intent to endanger life, armed robbery, pointing firearm, knowingly possessing firearm without licence, possession of firearm while prohibited, and failing to comply with probation condition not to possess firearm. It was admitted that both young offender and accused were involved in altercation that took place and that one of those two individuals shot complainant. Crown took position that only reasonable inference available on evidence was that accused was in possession of gun that discharged and shot complainant during physical altercation between accused and complainant after accused had dragged complainant from his car. Defence conceded that accused hit complainant in head with metallic object, but argued that blow inflicted upon complainant’s left temple could have been with metallic object or weapon other than gun. Accused not guilty of attempted murder, discharge firearm with intent to endanger life, point firearm; accused guilty of aggravated assault, robbery while armed with firearm, possession of firearm without licence, possession of firearm while prohibited and failure to comply with probation order. Court found that Crown had proved that accused guilty of aggravated assault as principal, and it was not necessary to rely on party liability either by concessions made by defence, or alternative analysis urged by Crown. Accused clearly intended to apply force to complainant that he knew complainant did not consent to when accused hit complainant over head with firearm while complainant was seated in car, dragged him out of car and started punching him with one or both hands. During this assault, gun discharged, causing injuries that meet definition of wounding, maiming, disfiguring and endangering of complainant’s life. Only reasonable inference was that accused’s movements while he was intentionally assaulting complainant caused gun to discharge. Alternatively, if court was wrong in its conclusion that accused was in possession of firearm that shot complainant, court reached conclusion that accused was liable as party to aggravated assault if young offender was shooter. Court found both that accused struck complainant with handgun and that he was in possession of it and discharged handgun when complainant was struck. Court was not convinced accused ever pointed handgun at complainant when he was hitting him (basis for pointing charge).

R. v. Dawkins (Jun. 14, 2013, Ont. S.C.J., J. Wilson J., File No. CR13-70000371-00) 111 W.C.B. (2d) 74.

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