Causation – Intro:
- Where a consequence is essential part of offense, crown must show that it was caused by
- Two layers of causation need to be shown
o Factual causation – would it have happened “but/for” the actions of accused?
o Legal causation – should the accused be held responsible in this case?
- Trakas (OCA – 2008) Shilon (OCA – 2006) – Motorcycle turns to high speed chase. Trakas and
Shilon charged with CNCD. Was there causation?
- Factual causation?
- For Trakas, yes, his SUV rammed into a cop
- Also yes for Shilon, there would not have been a car case if not for the theft
- Legal causation?
- Not speeding at the time and driving normally. No legal causation found. Trakas could not have
foreseen an officer suddenly appearing on the road in those circumstances.
- OCA said Shilon could be guilty of criminal negligence causing death
- “Where conduct is inherently dangerous and carried with it a reasonably foreseeable risk of
immediate and substantial harm, the test for legal causation will have been met. Trakas’s
actions were a predictable consequence of Shilon.”
Causation – Special Rules:
- How do we define death?
- No definitive legal guidance – generally, it would be a function of “accepted medical practise”
- S.226 Where a person causes to a human being a bodily injury that results in death, he causes
the death of that human being notwithstanding that the effect of the bodily injury is only to
accelerate his death from a disease or disorder arising from some other cause.
- If you kill someone, it does not matter that they were soon to die anyway
- S.14 No person is entitled to consent to have death inflicted on him, and such consent does not
affect the criminal responsibility of any person by whom death may be inflicted on the person
by whom consent is given.
- Cant consent to any non-trivial harm (Jobidon, etc)
- S.241 Everyone who (a) counsels a person to commit suicide, or (b) aids or abets a person to
commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to
imprisonment for a term not exceeding fourteen years.
Causation – Cutting Life Short:
- What constitutes “cutting life short”?
- Is a doctor liable for giving painkillers that reduce life expectancy?
- From Bodkin Adams (UK-1957): “*cutting life+ short by weeks or months *is+ just as much murder
as if it was cut by years”, but also said doctor was entitled to “do all that was proper and necessary to relieve pain and suffering even if the measures he took might incidentally shorten
by hours or perhaps even longer”
- If a doctor has to stop to do mathematical calculations, they can’t do their job
- This part of Bodkin Adams adopted as law (obiter dicta) in Rodriguez
- At some point, “medical assistance” is a crime where it goes beyond pain relief and becomes
euthanasia/manslaughter – Bodkin Adams – Rodriguez – Latimer
- One can refuse treatment even where death will result (QSC in Nancy B) but cannot receive
active assistance in dying (Rodriguez, SCC-1993)
- In Rodriguez the SCC held that s.241(b) did not violate s.7 of the Charter as it protected the
“sanctity of life”. “The purpose is grounded in the state interest in protecting life and reflects a
policy of the state that human life should not be depreciated by allowing life to be taken.”
- SCC also noted that “the formulation of safeguards to prevent excesses has been unsatisfactory
and has failed to allay fears that a relaxation of the clear standard of by the law will undermine
the protection of life and will lead to abuses of the exception”
Causation – More Than One “Cause of Death”:
- There can be more than one cause of death
- Think skull rule – take your victim as you find them
- Smithers (1977 – midget hockey fight case – kick to the stomach causes reaction)
- SCC said – “the kick was at least a contributing cause, outside the de minimis range, and that is
all the crown was required to establish”
- Test was “clarified” in Nette (2001 – SCC, 95 year old hog tied, multiple possible causes of
- SCC said “it may be preferable to phrase the standard of causation in positive terms using a
phrase such as significant contributing cause”
- SCC (Arbour) said, “the fact that the appellant’s actions might not have caused death in a
different person” does not remove proper causation
Causation – The Special Case of S.231(5):
- S.231(5) irrespective of whether a murder is planned and deliberate…murder is first degree
murder…when the death is caused by that person while committing or attempting to commit a
hijacking, sexual assault, kidnapping or hostage taking
- Harbottle (1993, SCC) – 2 guys assault girl, one strangles her while Harbottle holds her feet
- Crown relied (maybe) on s.231(5) to prove first degree murder (sexual assault)
- SCC – while the Smithers standard is okay for a lesser charge, it is specifically inadequate for a
s.231(5) charge. Wording of the section and seriousness of the charge require a higher standard.
- Causation only sufficient if: “the crown establishes that the accused has committed an act or
series of acts which are of such a nature that they must be regarded as a substantial and integral
cause of the death…they must play a very active role – usually a physical role in the killing
- Nette clarifies that Smithers test still applies otherwise (as reworded) Causation – Intervening Acts:
- Where another (independent) injury or event occurs and kills the victim before the actions of
the accused take effect, is the accused still liable?
- Kitching and Adams (MCA-1976), bouncers dropped drunk on his head, put on life support,
kidneys harvested, argued that is what killed him
- “There may be two or more independent operative causes of death… The later action could not
break the chain of causation “unless the evidence left a reasonable doubt that the accused
actions also constituted an operative cause of the deceased’s death”
- Also ask – is the “intervener” a natural consequence to the actions of the accused?
- In Bradley (1956 – accused attacked and knocked out victim leaving him on the cold streets of
- Court said that death from exposure was a “natural consequence” of the actions of the accused
– left the victim defenseless and exposed in the cold
- In Maybin (SCC-2012), two brothers punched the deceased, who was then punched by the
- “The intervening acts and the ensuing non-trivial harm must be reasonably foreseeable in the
sense that the acts and the harm that actually transpired flowed reasonably from the conduct of
the accused… If the intervening act is a direct response or is directly