Causation of Death: Difference between revisions

Latest revision as of 07:42, 21 May 2024

This page was last substantively updated or reviewed May 2024. (Rev. # 93294)

< Criminal Law
< Proof of Elements

General Principles

See also: Causation and Homicide (Offence)

Homicide is defined in s. 222(1) as occurring where a person "directly or indirectly, by any means, ... causes the death of a human being.". Culpable homicide (i.e. murder, manslaughter, or infanticide) is defined in section 222(5) as "when [a person] causes the death of a human being...by means of an unlawful act".

Causation Defined

Causation is explicitly identified as existing where the death might have been otherwise "been prevented by resorting to proper means"(s. 224) or where the immediate cause of death is proper or improper treatment applied in good faith (s.225) or where the victim is already suffering from a terminal condition. (s 226)

Significant Contributing Cause Test

The "Smithers test" for causation applies to all types of homicide. The test requires that the accused's act be a "significant contributing cause" of death beyond something trifling or minor. Thus, the unlawful act remains the legal cause of death even where the act by itself would not have cause death as long as it was beyond the de minimus. ^[1]

By implication, causation is in no way limited to a direct, an immediate, or the most significant cause.^[2]

Factual and Legal Causation

A distinction is made between factual causation and legal causation.^[3] The former being the broader of the two.

Factual causation requires "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"^[4]

To put it simply, the question is "but for" the act would death have arose? ^[5]

Legal Causation addresses the moral element of whether the accused "should be held responsible in law for the death"^[6]

It is not necessary for a judge to explain to a jury the distinction between legal and factual causation. The jury need only be instructed on deciding "whether the accused's actions significantly contributed to the victim's death."^[7]

In terms of evidence, it is not necessary for the Crown to prove the exact mechanism by which death was caused. It is only necessary that it be proven that an unlawful act led to injuries which caused death.^[8]

Degree of Participation in Constructive Murder

Where the offence is "constructive murder" under s. 231(5), that there is an added requirement (or enhanced Harbottle standard) that the accused be a "substantial cause of death."^[9] Given the nature of first degree constructive murder there is an added degree of participation in the killing to engage s. 231(5).^[10] To that end, the Crown must prove the accused "committed an act or series of acts that are of such a nature that they must be regarded as a substantial and integral cause of the deceased’s death. An accused must play a very active role – usually a physical role – in the killing."^[11]

The added participation requirement still permits convictions for secondary parties.^[12] The aider's conduct must satisfy the same Hartbottle participation standard.^[13]

Causation As Fact Not Law

In a homicide case, the issue of causation is for the jury to to decide and should not be dictated by expert evidence.^[14] The jury must consider all relevant evidence to decide causation.^[15]

Medical Evidence

There is no rule that requires there to be medical evidence supporting a finding of causation of death.^[16]

↑ R v Smithers, 1977 CanLII 7 (SCC), [1978] 1 SCR 506, per Dickson J - defines manslaughter as “a contributing cause of death, outside the de minimis range” (p. 519)
R v Nette, 2001 SCC 78 (CanLII), [2001] 3 SCR 488, per Arbour J, at paras 71 to 72
↑ R v Maybin, 2012 SCC 24 (CanLII), [2012] 2 SCR 30, per McLachlin CJ, at para 20
↑ R v Kippax, 2011 ONCA 766 (CanLII), [2011] O.J. 5494, per Watt JA, at paras 22 to 27
↑ Nette, supra, at para 44 ("In determining whether a person can be held responsible for causing a particular result, in this case death, it must be determined whether the person caused that result both in fact and in law. Factual causation, as the term implies, is concerned with 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. Where factual causation is established, the remaining issue is legal causation.")
↑ Maybin, supra, at para 15
↑ Nette, supra, at para 45 ("Legal causation, which is also referred to as imputable causation, is concerned with the question of whether the accused person should be held responsible in law for the death that occurred. It is informed by legal considerations such as the wording of the section creating the offence and principles of interpretation. These legal considerations, in turn, reflect fundamental principles of criminal justice such as the principle that the morally innocent should not be punished: ... In determining whether legal causation is established, the inquiry is directed at the question of whether the accused person should be held criminally responsible for the consequences that occurred. ")
↑ R v Sinclair (T.) et al., 2009 MBCA 71 (CanLII), 245 CCC (3d) 331, per Hamilton and Freedman JJA
↑ R v Stewart, 2003 NSCA 150 (CanLII), 697 APR 205, per Oland JA, at para 30
R v Rahman, 2014 NSCA 67 (CanLII), per Farrar JA, at para 75
↑ Nette, supra, at para 73
R v Tomlinson, 2014 ONCA 158 (CanLII), 307 CCC (3d) 36, per Watt JA, at para 141
R v Harbottle, 1993 CanLII 71 (SCC), [1993] 3 SCR 306, per Cory J, at pp. 323-324
↑ Tomlinson, supra, at para 142
Nette, supra, at para 61
↑ Tomlinson, supra, at para 141
Harbottle, supra, at p. 324
↑ Tomlinson, supra, at para 145
R v Ferrari, 2012 ONCA 399 (CanLII), 287 CCC (3d) 503, per Rosenberg JA, at para 68
↑ Tomlinson, supra, at para 145
Ferrari, supra, at para 85
Harbottle, supra, at p. 316
↑ Smithers v R, 1977 CanLII 7 (SCC), [1978] 1 SCR 506, per Dickson J at p. 518 (SCR)
↑ R v Pocock, 2015 ONCA 212 (CanLII), 19 CR (7th) 60, per Doherty JA, at para 19
↑ R v Hong, 2019 ONCA 170 (CanLII), per Sharpe JA

Deemed Causation of Death

Death that might have been prevented

224 Where a person, by an act or omission, does any thing that results in the death of a human being, he causes the death of that human being notwithstanding that death from that cause might have been prevented by resorting to proper means.
R.S., c. C-34, s. 207.

– CCC (CanLII), (DOJ)

Note up: 224

Death from treatment of injury

225 Where a person causes to a human being a bodily injury that is of itself of a dangerous nature and from which death results, he causes the death of that human being notwithstanding that the immediate cause of death is proper or improper treatment that is applied in good faith.
R.S., c. C-34, s. 208.

– CCC (CanLII), (DOJ)

Note up: 225

Acceleration of death

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.
R.S., c. C-34, s. 209.

– CCC (CanLII), (DOJ)

Note up: 266

Killing by influence on the mind

228 No person commits culpable homicide where he causes the death of a human being

(a) by any influence on the mind alone, or

(b) by any disorder or disease resulting from influence on the mind alone,

but this section does not apply where a person causes the death of a child or sick person by wilfully frightening him.
R.S., c. C-34, s. 211.

– CCC (CanLII), (DOJ)

Note up: 228

Intervening Acts

The doctrine of intervening acts can limit the scope of legal causation. The law recognizes an intervening cause that "'break the chain of causation' between the accused's acts and the death" which results in the "accused’s actions not being a significant contributing cause of death" ^[1]

There is "no single test or measure" to determine whether the chain of causation is broke.^[2]

It has been suggested that the intervening should be something that in some way is "extraordinary or unusual."^[3]

The doctrine can be triggered by an act of a co-participant in a group assault.^[4]

↑ R v Tower, 2008 NSCA 3 (CanLII), 54 CR (6th) 338, per Cromwell JA, at para 25 ("To be convicted of manslaughter, the accused’s acts must have been a significant contributing cause of the deceased’s death: ...The accused’s actions do not have to have been the sole cause of death; there may be other contributing causes. However, the law recognizes that other causes may intervene to “break the chain of causation” between the accused’s acts and the death. This is the concept of an “intervening cause”, that some new event or events result in the accused’s actions not being a significant contributing cause of death: ...")
↑ Lozada, 2024 SCC 18 at para 29
↑ R v Sinclair (T.) et al., 2009 MBCA 71 (CanLII), 245 CCC (3d) 331, per Hamilton and Freedman JJA
↑ Lozada at para 29

@@ Line 1: / Line 1: @@
+{{Currency2|May|2024}}
 {{LevelZero}}
 {{HeaderElements}}
@@ Line 4: / Line 5: @@
 ==General Principles==
-{{seealso|Causation}}
+{{seealso|Causation|Homicide (Offence)}}
-Homicide is defined in s. 222(1) as occurring where a person "directly or indirectly, by any means, ... causes the death of a human being.". Culpable Homicide (i.e. murder, manslaughter, or infanticide) is defined in section 222(5) as "when [a person] causes the death of a human being...by means of an unlawful act".
+Homicide is defined in s. 222(1) as occurring where a person "directly or indirectly, by any means, ... causes the death of a human being.". Culpable homicide (i.e. murder, manslaughter, or infanticide) is defined in section 222(5) as "when [a person] causes the death of a human being...by means of an unlawful act".
+; Causation Defined
 Causation is explicitly identified as existing where the death might have been otherwise "been prevented by resorting to proper means"(s. 224) or where the immediate cause of death is proper or improper treatment applied in good faith (s.225) or where the victim is already suffering from a terminal condition. (s 226)
+; Significant Contributing Cause Test
 The "Smithers test" for causation applies to all types of homicide.  The test requires that the accused's act be a "significant contributing cause" of death beyond something trifling or minor. Thus, the unlawful act remains the legal cause of death even where the act by itself would not have cause death as long as it was beyond the de minimus. <ref>
-''R v Smithers'', [http://canlii.ca/t/1mk9r 1977 CanLII 7], [1978] 1 SCR 506{{perSCC|Dickson J}} - defines manslaughter as “a contributing cause of death, outside the de minimis range” (p. 519)<br>
+{{CanLIIRP|Smithers|1mk9r|1977 CanLII 7 (SCC)|[1978] 1 SCR 506}}{{perSCC|Dickson J}} - defines manslaughter as “a contributing cause of death, outside the de minimis range” (p. 519)<br>
-''R v Nette'', [http://canlii.ca/t/51x9 2001 SCC 78] (CanLII){{perSCC| Arbour J}}{{ats|71-72}}
+{{CanLIIRP|Nette|51x9|2001 SCC 78 (CanLII)|[2001] 3 SCR 488}}{{perSCC| Arbour J}}{{atsL|51x9|71| to 72}}
 </ref>
 By implication, causation is in no way limited to a direct, an immediate, or the most significant cause.<ref>
-''R v Maybin'', [http://canlii.ca/t/frczg 2012 SCC 24] (CanLII){{perSCC|McLachlin CJ}}{{at|20}}</ref>
+{{CanLIIRP|Maybin|frczg|2012 SCC 24 (CanLII)|[2012] 2 SCR 30}}{{perSCC-H|McLachlin CJ}}{{atL|frczg|20}}</ref>
 ; Factual and Legal Causation
 A distinction is made between factual causation and legal causation.<ref>
-''R v Kippax'', [http://canlii.ca/t/fp7n6 2011 ONCA 766] (CanLII), [2011] O.J. 5494{{perONCA|Watt JA}} at 22 to 27</ref> The former being the broader of the two.
+{{CanLIIRP|Kippax|fp7n6|2011 ONCA 766 (CanLII)|[2011] O.J. 5494}}{{perONCA-H|Watt JA}}{{atsL|fp7n6|22| to 27}}</ref>
+The former being the broader of the two.
 *''Factual causation'' requires "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"<ref>
-{{supra1|Nette}}{{at|44}}</ref> To put it simply, the question is "but for" the act would death have arose? <ref>
+{{supra1|Nette}}{{atL|51x9|44}} ("In determining whether a person can be held responsible for causing a particular result, in this case death, it must be determined whether the person caused that result both in fact and in law.  Factual causation, as the term implies, is concerned with 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.  Where factual causation is established, the remaining issue is legal causation.")</ref>
-{{supra1|Maybin}}{{at|15}}</ref>
+To put it simply, the question is "but for" the act would death have arose? <ref>
+{{supra1|Maybin}}{{atL|frczg|15}}</ref>
 *''Legal Causation'' addresses the moral element of whether the accused "should be held responsible in law for the death"<ref>
-{{supra1|Nette}}{{at|45}}</ref>
+{{supra1|Nette}}{{atL|51x9|45}} ("Legal causation, which is also referred to as imputable causation, is concerned with the question of whether the accused person should be held responsible in law for the death that occurred.  It is informed by legal considerations such as the wording of the section creating the offence and principles of interpretation.  These legal considerations, in turn, reflect fundamental principles of criminal justice such as the principle that the morally innocent should not be punished: ... In determining whether legal causation is established, the inquiry is directed at the question of whether the accused person should be held criminally responsible for the consequences that occurred. ")</ref>
-It is not necessary for a judge to explain to a jury the distinction between legal and factual causation. The jury need only be instructed on deciding "whether the accused's actions significantly contributed to the victim's death".<ref>
+It is not necessary for a judge to explain to a jury the distinction between legal and factual causation. The jury need only be instructed on deciding "whether the accused's actions significantly contributed to the victim's death."<ref>
-''R v Sinclair'' (T.) et al., [http://canlii.ca/t/24mg7 2009 MBCA 71] (CanLII){{perMBCA|Hamilton and Freedman JJA}}
+{{CanLIIRP|Sinclair (T.) et al.|24mg7|2009 MBCA 71 (CanLII)|245 CCC (3d) 331}}{{perMBCA|Hamilton and Freedman JJA}}
 </ref>
 In terms of evidence, it is not necessary for the Crown to prove the exact mechanism by which death was caused. It is only necessary that it be proven that an unlawful act led to injuries which caused death.<ref>
-''R v Stewart'', [http://canlii.ca/t/1g86q 2003 NSCA 150] (CanLII){{perNSCA| Oland JA}}{{at|30}}<br>
+{{CanLIIRP|Stewart|1g86q|2003 NSCA 150 (CanLII)|697 APR 205}}{{perNSCA| Oland JA}}{{atL|1g86q|30}}<br>
-''R v Rahman'', [http://canlii.ca/t/g7kmb 2014 NSCA 67] (CanLII){{perNSCA| Farrar JA}}{{at|75}}<br>
+{{CanLIIRx|Rahman|g7kmb|2014 NSCA 67 (CanLII)}}{{perNSCA| Farrar JA}}{{atL|g7kmb|75}}<br>
 </ref>
 ; Degree of Participation in Constructive Murder
-Where the offence is "constructive murder" under s. 231(5), that there is an added requirement (or enhanced Harbottle standard) that the accused be a "substantial cause of death".<ref>
+Where the offence is "constructive murder" under s. 231(5), that there is an added requirement (or enhanced Harbottle standard) that the accused be a "substantial cause of death."<ref>
-{{supra1|Nette}}{{at|73}}<br>
+{{supra1|Nette}}{{atL|51x9|73}}<br>
-''R v Tomlinson'', [http://canlii.ca/t/g51wx 2014 ONCA 158] (CanLII){{perONCA|Watt JA}}{{at|141}}<br>
+{{CanLIIRP|Tomlinson|g51wx|2014 ONCA 158 (CanLII)|307 CCC (3d) 36}}{{perONCA-H|Watt JA}}{{atL|g51wx|141}}<br>
-''R v Harbottle'', [http://canlii.ca/t/1fs0z 1993 CanLII 71] (SCC), [1993] 3 SCR 306{{perSCC|Cory J}}{{atps|323-324}}<br>
+{{CanLIIRP|Harbottle|1fs0z|1993 CanLII 71 (SCC)|[1993] 3 SCR 306}}{{perSCC|Cory J}}{{atps|323-324}}<br>
-</ref> Given the nature of first degree constructive murder there is an added degree of participation in the killing to engage s. 231(5).<ref>
+</ref>
-{{supra1|Tomlinson}}{{at|142}}<br>
+Given the nature of first degree constructive murder there is an added degree of participation in the killing to engage s. 231(5).<ref>
-{{supra1|Nette}}{{at|61}}<br>
+{{supra1|Tomlinson}}{{atL|g51wx|142}}<br>
+{{supra1|Nette}}{{atL|51x9|61}}<br>
 </ref>
-To that end, the Crown must prove the accused "committed an act or series of acts that are of such a nature that they must be regarded as a substantial and integral cause of the deceased’s death. An accused must play a very active role – usually a physical role – in the killing".<ref>
+To that end, the Crown must prove the accused "committed an act or series of acts that are of such a nature that they must be regarded as a substantial and integral cause of the deceased’s death. An accused must play a very active role – usually a physical role – in the killing."<ref>
-{{supra1|Tomlinson}}{{at|141}}<br>
+{{supra1|Tomlinson}}{{atL|g51wx|141}}<br>
 {{supra1|Harbottle}}{{atp|324}}<br>
 </ref>
 The added participation requirement still permits convictions for secondary parties.<ref>
-{{supra1|Tomlinson}}{{at|145}}<br>
+{{supra1|Tomlinson}}{{atL|g51wx|145}}<br>
-''R v Ferrari'', [http://canlii.ca/t/frpgc 2012 ONCA 399] (CanLII), 287 CCC (3d) 503{{perONCA|Rosenberg JA}}{{at|68}}<br>
+{{CanLIIRP|Ferrari|frpgc|2012 ONCA 399 (CanLII)|287 CCC (3d) 503}}{{perONCA|Rosenberg JA}}{{atL|frpgc|68}}<br>
 </ref>
 The aider's conduct must satisfy the same Hartbottle participation standard.<ref>
-{{supra1|Tomlinson}}{{at|145}}<br>
+{{supra1|Tomlinson}}{{atL|g51wx|145}}<br>
-{{supra1|Ferrari}}{{at|85}}<br>
+{{supra1|Ferrari}}{{atL|frpgc|85}}<br>
 {{supra1|Harbottle}}{{atp|316}}<br>
+</ref>
+; Causation As Fact Not Law
+In a homicide case, the issue of causation is for the jury to to decide and should not be dictated by expert evidence.<ref>
+{{CanLIIRPC|Smithers v R|1mk9r|1977 CanLII 7 (SCC)|[1978] 1 SCR 506}}{{perSCC|Dickson J}} at p. 518 (SCR)
+</ref>
+The jury must consider all relevant evidence to decide causation.<Ref>
+{{CanLIIRP|Pocock|ggz0p|2015 ONCA 212 (CanLII)|19 CR (7th) 60}}{{perONCA-H|Doherty JA}}{{AtL|ggz0p|19}}
+</ref>
+; Medical Evidence
+There is no rule that requires there to be medical evidence supporting a finding of causation of death.<Ref>
+{{CanLIIRx|Hong|hxv3k|2019 ONCA 170 (CanLII)}}{{perONCA|Sharpe JA}}
 </ref>
 {{reflist|2}}
-===Deemed Causation of Death===
+==Deemed Causation of Death==
-{{quotation|
+{{quotation2|
 ; Death that might have been prevented
 Where a person, by an act or omission, does any thing that results in the death of a human being, he causes the death of that human being notwithstanding that death from that cause might have been prevented by resorting to proper means.
 <br>
 R.S., c. C-34, s. 207.
-|[{{CCCSec|224}} CCC]
+|{{CCCSec2|224}}
+|{{NoteUp|224}}
 }}
-{{quotation|
+{{quotation2|
 ; Death from treatment of injury
 Where a person causes to a human being a bodily injury that is of itself of a dangerous nature and from which death results, he causes the death of that human being notwithstanding that the immediate cause of death is proper or improper treatment that is applied in good faith.
 <br>
 R.S., c. C-34, s. 208.
-|[{{CCCSec|224}} CCC]
+|{{CCCSec2|225}}
+|{{NoteUp|225}}
 }}
-{{quotation|
+{{quotation2|
 ; Acceleration of death
 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.
 <br>
 R.S., c. C-34, s. 209.
-|[{{CCCSec|226}} CCC]
+|{{CCCSec2|226}}
+|{{NoteUp|266}}
 }}
-{{Quotation|
+{{quotation2|
 ; Killing by influence on the mind
 No person commits culpable homicide where he causes the death of a human being
@@ Line 92: / Line 114: @@
 <br>
 R.S., c. C-34, s. 211.
-|[{{CCCSec|228}} CCC]
+|{{CCCSec2|228}}
+|{{NoteUp|228}}
 }}
 ==Intervening Acts==
 The doctrine of intervening acts can limit the scope of legal causation. The law recognizes an intervening cause that "'break the chain of causation' between the accused's acts and the death" which results in the "accused’s actions not being a significant contributing cause of death" <ref>
-''R v Tower'', [http://canlii.ca/t/1vn7l 2008 NSCA 3] (CanLII){{perNSCA| Cromwell JA}}{{at|25}}</ref>
+{{CanLIIRP|Tower|1vn7l|2008 NSCA 3 (CanLII)|54 CR (6th) 338}}{{perNSCA| Cromwell JA}}{{atL|1vn7l|25}} ("To be convicted of manslaughter, the accused’s acts must have been a significant contributing cause of the deceased’s death: ...The accused’s actions do not have to have been the sole cause of death; there may be other contributing causes.  However, the law recognizes that other causes may intervene to “break the chain of causation” between the accused’s acts and the death.  This is the concept of an “intervening cause”, that some new event or events result in the accused’s actions not being a significant contributing cause of death: ...")</ref>
+There is "no single test or measure" to determine whether the chain of causation is broke.<ref>
+Lozada, 2024 SCC 18 at para 29
+</ref>
-It has been suggested that the intervening should be something that in some way is "extraordinary or unusual".<ref>
+It has been suggested that the intervening should be something that in some way is "extraordinary or unusual."<ref>
-''R v Sinclair (T.) et al.'', [http://canlii.ca/t/24mg7 2009 MBCA 71] (CanLII){{perMBCA|Hamilton and Freedman JJA}} </ref>
+{{CanLIIRP|Sinclair (T.) et al.|24mg7|2009 MBCA 71 (CanLII)|245 CCC (3d) 331}}{{perMBCA|Hamilton and Freedman JJA}} </ref>
+The doctrine can be triggered by an act of a co-participant in a group assault.<Ref>
+Lozada at para 29
+</ref>
 {{reflist|2}}
+==See Also==
+* [[Murder (Offence)]]
+* [[Parties]]