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Old November 14th, 2014, 15:35   #25
Cameron SS
Join Date: Nov 2014
Originally Posted by RainyEyes View Post
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.

Not sure what you mean by this.

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.

Pointing a firearm at someone CAN constitute assault, IF there was no consent to the pointing. If police witnessed you pointing a firearm, you would likely get charged for both. If the person who you pointed at said "I consented", as in the case of sports, games, backyard fun, whatever, the charge of assault must be dropped. Inherent in the definition of assault is the words, 'without consent'. If when enacting Section 87 of the Criminal Code, Parliament meant for consent to be a relevant factor, they would have said so. Lawful excuse typically, but not exclusively, means a defense of self defense, duress, necessity, etc. or any other excuse established in law relevant to that section specifically.

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.

You have presented a logical fallacy.
Not all assaults are necessarily a result of pointing a firearm.
Further the Criminal Code has set out Assault and Pointing, as two separate things, and while the same act may fall under both definitions, the legal defenses available to one do not necessarily apply to the other.

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.

Not sure that if that is a typo, so please clarify. I never said lack of consent was an essential element of s.87. In fact I have suggested the opposite. The essential elements of s. 87 are pointing a firearm at someone, and intending to do so. Consent is only a lawful excuse, if a lack of consent is a required element of the offence. There is no requirement for a lack of consent to pointing a firearm, therefore lack of consent is not a lawful excuse.

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.
RCMP officers are exempt from large portions of the criminal code, notably Part 3, when they are performing their duties. If the RCMP officer was not performing his assigned duties and pointed his service pistol at someone, than it is entirely possible that he broke the law.

Unfortunately, the law doesn't have to make sense. There are many examples, particularly under our poorly written firearms legislation, where the law defies all logic and pragmatism. Sadly, it seems like Airsofters are about to feel this pain.

Last edited by Cameron SS; November 14th, 2014 at 15:39..
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