D. VOLUNTARINESS
Actus reus has to be voluntary in a physical sense in order to be valid. NOT the same as intent - it is possible for an act to be voluntary in the sense of under your physical control, but not intentional in that you did not intend its consequences.
Involuntary intoxication falls under this concept - voluntary intoxication is a specific kind of defence.
R v JIANG [2007] BCCA
FACTS
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The A was charged with dangerous driving causing death. While driving home from Stanley Park with her family, she fell asleep behind the wheel. Her car mounted the curb and struck two children in a parking lot, killing one of them.
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RULING
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Ruling for A – she introduced evidence that she had a sleeping disorder and fell asleep involuntarily.
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RATIO
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Actus reus must be voluntary.
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R v LUCKI [1955] BCCA
FACTS
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A’s car skidded into opposing traffic due to road conditions.
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RULING
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Ruling for A – not guilty because act was involuntary.
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RATIO
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Actus reus must be voluntary.
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CAUSATION
Relevant when there is a consequence as an element of the actus reus. Most often, issues of causation arise in offenses that cause bodily harm or death.
Legal question: when does an act cause a particular consequence? What is the test for directness/remoteness?
Related question: should the standard of causation in cases of murder be different?
Factual Causation
An inquiry about how the victim came to his or her death, in a medical, mechanical, or physical sense, and with the contribution of the accused to that result - "but for" test.
Legal Causation
Inquiry into moral blameworthiness - whether the accused person should be held responsible in law for the death that occurred.
R v SMITH [1959] UK CA
FACTS
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Two soldiers got into a fight. A stabbed the victim with a bayonet. Victim didn't die immediately - he was carried to the surgeon's tent and dropped a few times and there received treatment which contributed to his death.
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RULING
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Ruling for the Crown – A is still responsible for causing the death of the victim even though there were other contributing causes.
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RATIO
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If an initial cause remains a significant cause when the prohibited outcome occurs, then it is said to be the cause of the outcome even if there are other causes acting towards the outcome, unless the subsequent causes are "overwhelmingly" to blame.
This was the test for causation in Canada up until Smithers.
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R v. SMITHERS [1978] SCC
FACTS
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Playing a game, racial epithets launched between teams. A kicked victim in the stomach, and victim fell over and died. Later determined that victim had malfunctioning throat which contributed to his death. A argued that his kick did not cause the victim's death.
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RULING
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Ruling for Crown – court upholds conviction and sets out the test for causation for manslaughter in Canada.
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RATIO
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Take your victim as you find them (thin skull rule).
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TEST FOR CAUSATION
Were the actions of the accused a contributing cause of death outside the de minimis range?
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R v. HARBOTTLE [1993] SCC
FACTS
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2 A were charged with first degree murder under s. 231(5) after sexually assaulting and killing a young woman. Section 231(5) provides that murder is first degree murder if the death was “caused by that person while committing or attempting to commit” one of a number of offences, including sexual assault. Harbottle’s role in the killing was to pin down the victim’s legs while his co-accused strangled her (after both had sexually assaulted her). While it was clear that Harbottle was guilty of murder for aiding and abetting the killing, he argued that he was not guilty of first degree murder because he did not personally cause the victim’s death.
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RULING
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In defining the word “cause” in this context, the Supreme Court of Canada applied a higher standard than the Smithers test because of the seriousness of a first degree murder conviction. The Court held that the Crown had to prove that Harbottle “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 death.” This is clearly a stricter test than the “contributing cause” test of Smithers. Despite this, the accused was found to have met this stricter standard and the conviction was upheld.
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RATIO
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TEST FOR CAUSATION IN FIRST-DEGREE MURDER
Were the actions of the accused a substantial and integral cause of death?
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After Harbottle, it is not clear whether Smithers test does not apply to first-degree murder or to all forms of murder. This is the question raised in Nette.
R v. BLAUE [1975] UK CA
FACTS
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Blaue stabbed and sexually assaulted Jacolyn Woodhead. She went to the hospital, but refused a blood transfusion because she was a Jehovah's Witness.
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RULING
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Ruling for the Crown – the victim's refusal of life-saving treatment did not break the chain of causation. A argues there must be a reasonableness standard for this thin skull rule. Court notes that reasonableness is not a sufficiently objective standard - reasonable according to whom? An atheist? A Jehovah's Witness? Court holds that it doesn't matter, take your victim as you find them regardless.
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RATIO
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Take your victim as you find them (thin skull rule).
Refusal of life-saving treatment does not break the chain of causation, regardless of the reasonableness of the behaviour.
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R v. NETTE [2001] SCC
FACTS
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A, acting with another, robbed 95 year old widow and left her hog tied in her bedroom. Victim fell off bed and asphyxiated, dying. A is charged with first degree murder on the basis that he had committed murder while unlawfully confining victim. Crown’s position at trial was that the act of causing death and the acts comprising the offence of unlawful confinement all formed part of one continuous sequence of events making up a single transaction, and that A was guilty of first degree murder. Judge tells the jury that the test for 2nd degree murder and manslaughter is the Smithers test and for 1st degree murder is the Harbottle test. The jury returned a verdict of second degree murder and A appeals, arguing the latter test applies to all kinds of murder.
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RULING
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A's appeal is dismissed - relevant test for all manslaughter and homicide convictions is Smithers test and for 1st degree murder is the Harbottle test. Causation is related to mens rea - high standard of mens rea corresponds to higher standard of legal causation.
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RATIO
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Test for all manslaughter and homicide convictions is the Smithers test (significant and contributing cause).
Higher test for 1st degree murder is the Harbottle test (substantial and integral cause).
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CONCURRENCE
L'HEUREUX-DUBE J: Beyond de minimis cause =/= significant contributing cause.
R v. JSR [2008] SCC
FACTS
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A, the southbound shooter, got into a shootout on Yonge street. Victim was killed in the crossfire, but by a bullet from the northbound shooter. Not clear whether it was first bullet or second or third, etc. A’s counsel argued it was a reasonable possibility that the first bullet from the northbound shooter's gun killed the victim and therefore it would not be possible to determine beyond a reasonable doubt that A was a significant cause of the murder.
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RULING
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Court finds for the Crown - A agreed to engage in a gun battle on Yonge St. and so can be found to be engaged in a dangerous joint enterprise that could be a significant and contributing factor to the victim's death. Nor is the act of the northbound shooter an intervening cause.
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RATIO
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Application of Smithers test.
Acts by a third party who is not acting independently but is acting in furtherance of a joint activity undertaken by the accused and that third party will not sever the legal causal connection.
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R v. MAYBIN [2012] SCC
FACTS
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Late at night, in a busy bar, the A brothers, T & M, repeatedly punched the victim in the face and head. T eventually struck a blow that rendered the victim unconscious. Arriving on the scene within seconds, a bar bouncer then struck the victim in the head. The medical evidence was inconclusive about which blows caused death. As a result, the trial judge acquitted the accused brothers and the bouncer. The Court of Appeal was unanimous that the accused’s assaults were factually a contributing cause of death – “but for” their actions, the victim would not have died. Furthermore, the majority of the Court of Appeal concluded that the risk of harm caused by the intervening actor could have been reasonably foreseeable to the accused. The dissenting judge did not agree that the accused could have reasonably foreseen the conduct of the intervening actor, and also concluded that the intentional act of a third party (bouncer) acting independently severed legal causation. The appeal was allowed, the acquittals were set aside and a new trial was ordered.
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RULING
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Court dismisses the appeal and order for a new trial is upheld. Both the “reasonable foreseeability” and the “intentional, independent act” approach may be useful in assessing legal causation depending on the specific facts. These approaches grapple with the issue of the moral connection between the accused’s acts and the death; they acknowledge that an intervening act that is reasonably foreseeable to the A may well not break the chain of causation, and that an independent and intentional act by a third party may in some cases make it unfair to hold the A responsible. These approaches may be useful tools depending upon the context. However, the analysis must focus on first principles and recognize that these tools are analytical aids and do not alter the standard of legal causation or substitute new tests.
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RATIO
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The court can consider whether there are intervening acts or whether causation is severed, but Smithers is still the relevant test.
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