Constitutional Limits on Criminal Law 1
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CausationFactual CausationFactual causation is established where the prohibited consequence would not have occurred but for the accused’s act (Maybin). There may be other causes. This is irrelevant. (Maybin) Cases seldom fail for lack of factual causation, but one did in R v Winning, ONCA, 1973. The accused submitted a false information on a credit application. She was not guilty of obtaining credit under false pretenses (CC 362(1)(b)) because the credit company only relied on the accused’s name and address, which she had listed correctly. The accused’s provision of false information therefor did not cause her acquisition of the credit.
Standard of proof: beyond a reasonable doubt (Smithers) This is a question of fact, to be determined by the finder of fact, in light of the totality of evidence. Intention, foresight, or risk are not relavent to causation. (Smithers) It is irrelevant whether there are other contributing causes (Smithers)
The most trivial assault renders its author guilty of culpable homicide if, through some unforeseen weakness of the victim, it causes death (Smithers; Blaue) In Smithers, the accused was guilty of manslaughter even though the victim would not have died had his epiglottis not malfunctioned. In Blaue, the accused was guilty of manslaughter even though the victim would not have died had she accepted a blood transfusion. The court treated the victim’s religious beliefs (Jahovah’s Witness) as a thin skull rather than an intervening cause. The Smithers standard of causation, when combined with a fault requirement (for manslaughter, objective foreseeability of bodily harm), does not infringe s7. It is a principle of fundamental justice that the morally innocent should not be punished. Causation and fault, together, assure that they are not punished. (Cribbin) The standard of causation to establish 1st degree murder (CC 231), once murder generally (CC 229) is already established according to the Smithers standard, is higher than the Smithers standard: the accused’s act must have been a substantial and integral cause of the victim’s death (Harbottle). This higher standard applied to 1st degree murder only, it does not apply to 2nd degree (CC 231(7)) murder. It reflects the increased culpability that is associated with particularly intense participation in a murder (Nette). Why did Harbottle arrive at this interpretation? Severity of consequences of a 1st degree murder conviction, 1st degree murder is dealt with after causation for murder has already been dealt with. To require the same standard of causation would be redundant (I find this logic questionable). (Harbottle)
Intervening CausesThe accused is not guilty where an intervening cause breaks the chain of causation between the act of the accused and the consequence element of the offence such that the accused’s act is not a significant contributing cause of the prohibited consequence (Maybin, Reid & Stratton). The Smithers/Nette “significant contributing cause” test is dispositive in the analysis of whether an intervening act broke the chain of causation, but the “foreseeability” and “intervening act” analyses are helpful interpretive aids. (Maybin) Foreseeability – was the general nature of the intervening act and the risk of harm it connoted objectively foreseeable? It is sufficient if the general nature of the intervening act and risk of non-trivial harm are objectively foreseeable. The details of the intervening event may be be unpredictable and need not be foreseeable. (Maybin) Intervening Act – was the intervening act independent of (rather than directly linked to) the accused’s actions – and did it overwhelm the accused’s actions – such that it became, at law, the sole cause of the victim’s death? (Maybin) Examples of intervening causes that break the chain of causation: X assaults Y, who dies when an earthquake causes the building in which he fell unconscious to collapse. X is not guilty of homicide; the earthquake is an intervening cause. (mentioned in Reid & Stratton) X assaults Y, Z carries Y to a clinic, but falls into a well and drowns or falls victims to murderous robbers along the way, X is not guilty of homicide. (Mentioned in Reid & Stratton) Where the intervening act is the act of a 3rd party, it must be free, deliberate, and informed. In particular, it must not be a reasonable act of self-defence (shooting back when being shot at) or an act done in the performance of a legal duty (under certain circumstances, a peace officer shooting at a criminal). (Pagett v The Queen) Acts by a 3rd party who is participating in a joint activity with the accused are not intervening acts – gun battle (R v SRJ); Street racing.
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