Originally Posted by Cameron SS
Yes, I know. Assault, by definition, requires a lack of consent. You can consent to being punched in the fact, and it is not an "assault" because there was consent. It would be tautologous to say I consented to a non-consensual act.
Nothing in Section 87 of the Criminal Code addresses consent, and a lack of consent is not a required element of the offence.
87. (1) Every person commits an offence who, without lawful excuse, points a firearm at another person, whether the firearm is loaded or unloaded.
Consent is not a lawful excuse.
Consent is INDEED a lawful excuse.
Consider the logic in this. If consent is considered an essential element to assault, and a successful defense argument in prosecution, it is therefore deemed to be a lawful reason for applying an act.
In the context of assault, the act of applying force, or the knowing of the ability to carry out said threat/application of force
is parallel to the pointing of a firearm at another person which is the knowing potential ability to apply said force, it would constitute assault.
Side note: In the event that the firearm is loaded, an officer would charge the accused with both assault and pointing a firearm, but that is a case after the fact, and is irrelevant in determining the charges.
Using syllogism, we can deduct that if consent is a defense that constitutes a lawful excuse in assault, it MUST apply as a lawful excuse in S. 87 C.C.
To spell this out.
Pointing a firearm at a person is assault.
Consent is a legal defense to assault.
Therefore, consent is a legal defense to pointing a firearm at a person.
In the context of airsoft, this would hold true because of the situation, and if you counter argue that there is no case law where this applies, just try it in court. A good lawyer is able to look at the context of the charge and apply a lawful excuse. There's a reason that there are no provisions in the CC that outline lawful excuses; they are contextual and are defined by the type of charge.
That being said, you're not wrong that the essential element of s. 87 is a lack of consent, but consent is, however, a lawful excuse, which is an essential element and the defense to this charge.
As well, I have had the pleasure of having an RCMP officer point his firearm at my instructor in a training scenario. No one was charged. We all left unharmed. Was this a sign of police corruption? Hell no. To insinuate that consent is not a lawful excuse in s. 87 demonstrates a fundamental misunderstanding of the application of law and a lack of consideration for the context and pragmatism of law.