R. v. Nette

R. v. Nette
Collection
Supreme Court Judgments
Date
2001-11-15
Neutral citation
2001 SCC 78
Report
[2001] 3 SCR 488
Case number
27669
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
British Columbia
Subjects
Criminal law
Notes
SCC Case Information: 27669
Decision Content
R. v. Nette, [2001] 3 S.C.R. 488, 2001 SCC 78
Daniel Matthew Nette Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General for Ontario Intervener
Indexed as: R. v. Nette
Neutral citation: 2001 SCC 78.
File No.: 27669.
2001: January 16; 2001: November 15.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for british columbia
Criminal law -- Second degree murder -- Causation -- Charge to jury – Appropriate standard of causation for second degree murder – How applicable standard should be explained to jury -- Whether trial judge misdirected jury on standard of causation.
Criminal law -- Murder -- Causation -- Whether same standard of causation applicable to all homicide offences – Whether “substantial cause” standard applies only to first degree murder under s. 231(5) of Criminal Code .
A 95-year-old widow who lived alone was robbed and left bound with electrical wire on her bed with a garment around her head and neck. Sometime during the next 48 hours, she died from asphyxiation. During an RCMP undercover operation, the accused told a police officer that he had been involved in the robbery and death. The accused was charged with first degree murder under s. 231(5) of the Criminal Code -- murder while committing the offence of unlawful confinement -- and tried before a judge and jury. At trial, he claimed that he had fabricated the admission. He testified that he had gone alone to the victim’s house only with intent to break and enter, that the back door to the house was open as though someone already had broken into the home, and that he left after finding the victim already dead in her bedroom. The trial judge charged the jury on manslaughter, second degree murder and first degree murder under s. 231(5) of the Code. In response to a request from the jury that he clarify the elements of first degree murder and the “substantial cause” test, the trial judge essentially reiterated his charge. Overall, he charged that the standard of causation for manslaughter and second degree murder was that the accused’s actions must have been “more than a trivial cause” of the victim’s death while, for first degree murder under s. 231(5) , the accused’s actions also must have been a “substantial cause” of her death. On two occasions, however, once in the main charge and once in the re-charge, he described the standard of causation for second degree murder as “the slight or trivial cause necessary to find second degree murder” instead of “more than a trivial cause”. The jury found the accused guilty of second degree murder and the Court of Appeal upheld that verdict. The only ground of appeal both before the Court of Appeal and this Court concerned the test of causation applicable to second degree murder.
Held: The appeal should be dismissed. The jury’s verdict of second degree murder is upheld.
Per Iacobucci, Major, Binnie, Arbour and LeBel JJ.: Responsibility for causing a result, in this case death, must be determined both in fact and in law. Factual causation concerns how the victim came to death in a medical, mechanical, or physical sense and the accused’s contribution. Legal causation concerns the accused’s responsibility in law and is informed by legal considerations such as the wording of the offence and principles of interpretation. These considerations reflect fundamental principles of criminal justice. The inquiry to find legal causation can be expressed as determining whether the result can fairly be said to be imputable to the accused. Although the jury does not engage in a two-part analysis of causation, the charge to the jury should convey the requisite degree of factual and legal causation. The starting point is usually the unlawful act itself. It will rarely be necessary to charge the jury on the standard of causation if the requisite mental element for the offence exists because the mens rea requirement usually resolves concerns about causation. The law of causation is in large part judicially developed but it is also expressed in the Criminal Code . Where a factual situation does not fall within a statutory rule of causation, the criminal common law applies. The civil law of causation is of limited assistance in elucidating the criminal standard of causation.
It is not appropriate in jury charges to formulate a separate causation test for second degree murder. The causation standard expressed in Smithers is still valid and applicable to all forms of homicide. The standard, however, need not be expressed as “a contributing cause of death, outside the de minimis range”. The concept of causation and the terminology used to express that concept are distinct. Latin expressions or the formulation of the test in the negative are not useful means of conveying an abstract idea. It is preferable to use positive terms such as “significant contributing cause” rather than “not a trivial cause” or “not insignificant”. Also, because causation issues are case-specific and fact-driven, trial judges should have discretion to choose terminology relevant to the circumstances of the case. In the case of first degree murder under s. 231(5) of the Code, a jury must also consider the additional Harbottle “a substantial causation” standard but only after finding the accused guilty of murder. This standard, which indicates a higher degree of legal causation, comes into play at the stage of deciding whether the accused’s degree of blameworthiness warrants the increased penalty and stigma of first degree murder. Such a high degree of blameworthiness would only be established where the actions of the accused were found to be an essential, substantial and integral part of the killing of the victim. The Harbottle standard stresses the increased degree of participation required before an accused may be convicted of first degree murder under s. 231(5) .
The difficulty in establishing a single, conclusive medical cause of death does not lead to the legal conclusion that there were multiple operative causes of death. In a homicide trial, the question is not who or what caused the victim’s death but whether the accused caused the death. The fact that other persons or factors may have contributed to the result may or may not be legally significant in the trial of the one accused charged with the offence. It will be significant, and exculpatory, if independent factors, occurring before or after the acts or omissions of the accused, legally sever the link that ties him to the prohibited result. This case involves neither multiple causes nor intervening causes nor a thin-skull victim so it was unnecessary to instruct the jury on the law of causation beyond stating the need to find that the accused caused the victim’s death. However, in relation to the charge of first degree murder under s. 231(5) of the Code, it was necessary for the trial judge to instruct the jury in accordance with Harbottle.
The trial judge accurately stated the correct standard of causation for second degree murder. Although, on two occasions, he misspoke in describing the appropriate test, by contrasting the high standard of causation for first degree murder with “the slight or trivial cause necessary to find second degree murder”, these errors would not have caused the jury to believe that the applicable standard of causation for second degree murder was lower than the Smithers standard of “more than a trivial cause”. Given that the jury found the accused guilty of second degree murder, it must be concluded that the jury found that the accused had the requisite intent for the offence of murder, namely subjective foresight of death. The jury’s conclusion with respect to intent could not have been affected by the instructions on causation. No reasonable jury could have had any doubt about whether the accused’s actions constituted a significant, operative cause of the victim’s death. Whatever the jury’s reasons for acquitting the accused of first degree murder, the jury’s verdict of second degree murder is unimpeachable.
Per McLachlin C.J. and L’Heureux-Dubé, Gonthier and Bastarache JJ.: The test for causation for culpable homicide set out in Smithers should not be changed from “a contributing cause of death, outside the de minimis range” into “a significant contributing cause”. The current language is the correct formulation and should be used to express the standard of causation to the jury for all homicide offences. To avoid a Latin expression, an appropriate version would be “a contributing cause [of death] that is not trivial or insignificant”. The terms “not trivial” and “not insignificant” accurately express a standard that has withstood the test of time as an authoritative test of causation. There is no legitimate reasons to reformulate it.
There is a meaningful difference between “a contributing cause [of death] that is not trivial or insignificant” and a “significant contributing cause”. The suggested change in terminology drastically changes the substance of the causation test and ignores the reason for using a double negative. A “significant contributing cause” standard calls for a more direct causal relationship than the “not insignificant” or “not trivial” test, thus raising the threshold of causation for culpable homicide from where it currently stands. The word “significant” implies an elevated contribution and is not equivalent to “not insignificant”. It is crucial to use exact language because language is the medium through which law finds expression and language is an outward sign of our legal reasoning. Trial judges should continue to use the current language of “a contributing cause [of death] that is not trivial or insignificant” for all homicide offences.
Cases Cited
By Arbour J.
Explained: Smithers v. The Queen, [1978] 1 S.C.R. 506; R. v. Harbottle, [1993] 3 S.C.R. 306; referred to: R. v. Farrant, [1983] 1 S.C.R. 124; R. v. Cribbin (1994), 17 O.R. (3d) 548; R. v. Meiler (1999), 136 C.C.C. (3d) 11; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Creighton, [1993] 3 S.C.R. 3; R. v. Droste, [1984] 1 S.C.R. 208; R. v. Paré, [1987] 2 S.C.R. 618; R. v. Arkell, [1990] 2 S.C.R. 695; R. v. Luxton, [1990] 2 S.C.R. 711; British Columbia Electric Railway Co. v. Loach, [1916] A.C. 719; R. v. Pagett (1983), 76 Cr. App. R. 279; R. v. Hallett, [1969] S.A.S.R. 141; Royall v. R. (1991), 100 A.L.R. 669; R. v. Smith (1959), 43 Cr. App. R. 121; R. v. Cheshire, [1991] 3 All E.R. 670; R. v. Hennigan, [1971] 3 All E.R. 133; Dulieu v. White, [1901] 2 K.B. 669; Athey v. Leonati, [1996] 3 S.C.R. 458.
By L’Heureux-Dubé J.
Referred to: Smithers v. The Queen, [1978] 1 S.C.R. 506; Deeks v. Wells, [1931] O.R. 818.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1985, c. C-46, ss. 21 , 81 , 222 , 225 , 226 , 229 , 230 , 231 (5) [am. c. 27 (1st Supp.), s. 40(2) (Sch. I, item 3)], (6) [ad. 1997, c. 16, s. 3], (6.1) [idem, c. 23, s. 8], 264.
Authors Cited
Editorial, “Semantics and the threshold test for imputable causation” (2000), 24 Crim. L.J. 73.
Klinck, Dennis R. The Word of the Law. Ottawa: Carleton University Press, 1992.
Presser, Jill. “All for a Good Cause: The Need for Overhaul of the Smithers Test of Causation” (1994), 28 C.R. (4th) 178.
Stuart, Don. Canadian Criminal Law: A Treatise, 3rd ed. Scarborough: Carswell, 1995.
Tiersma, Peter M. Legal Language. Chicago: University of Chicago Press, 1999.
Weissman, Gary A. “Legal Esoterica: Reality is shaped by the language we use: ‘Jack and the Beanstalk’ as told by a judge, a psychiatrist, and an economist” (1986), 29 Advocate (Idaho) 22.
Williams, Glanville. Textbook of Criminal Law, 2nd ed. London: Stevens, 1983.
Yeo, Stanley. “Blamable Causation” (2000), 24 Crim. L.J. 144.
Yeo, Stanley. “Giving Substance to Legal Causation” (2000), 29 C.R. (5th) 215.
APPEAL from a judgment of the British Columbia Court of Appeal (1999), 131 B.C.A.C. 104, 214 W.A.C. 104, 141 C.C.C. (3d) 130, 29 C.R. (5th) 195, [1999] B.C.J. No. 2836 (QL), 1999 BCCA 743, upholding the accused’s conviction for second degree murder. Appeal dismissed.
Gil D. McKinnon, Q.C., for the appellant.
Richard C. C. Peck, Q.C., and Nikos Harris, for the respondent.
Lucy Cecchetto, for the intervener the Attorney General for Ontario.
The reasons of McLachlin C.J. and L’Heureux-Dubé, Gonthier and Bastarache were delivered by
1 L’Heureux-Dubé J. — I had the benefit of reading my colleague Madam Justice Arbour’s reasons and while I concur in the result she reaches, I do not agree with her suggestion to rephrase the standard of causation for culpable homicide set out by this Court in Smithers v. The Queen, [1978] 1 S.C.R. 506. Writing for the Court, Dickson J. (as he then was) articulated the causation test in the following manner (at p. 519):
The second sub-question raised is whether there was evidence on the basis of which the jury was entitled to find that it had been established beyond a reasonable doubt that the kick caused the death. In answer to this question it may shortly be said that there was a very substantial body of evidence, both expert and lay, before the jury indicating that the kick was at least a contributing cause of death, outside the de minimis range, and that is all that the Crown was required to establish. [Emphasis added.]
2 To avoid resorting to the Latin expression, Lambert J.A., in the Court of Appeal’s ruling in this case ((1999), 141 C.C.C. (3d) 130), suggested an English version that I believe adequately reflects Smithers’ beyond de minimis standard (at para. 29):
In the Smithers case the relevant causal standard is described in the words “a contributing cause beyond de minimis”. If one were to avoid the Latin, which a jury may find confusing, the Smithers standard is “a contributing cause that is not trivial or insignificant”. See Crimji 6.45, para.17. [Emphasis added.]
3 In her reasons, my colleague also refers to the English translation of the Smithers test when she writes (at para. 54): “Since Smithers, the terminology of ‘beyond de minimis’ or ‘more than a trivial cause’ has been used interchangeably with “outside the de minimis range” to charge juries as to the relevant standard of causation for all homicide offences, be it manslaughter or murder.”
4 The terms “not trivial” and “not insignificant” are accurate and do not alter the Smithers standard which, it is worth noting, has withstood the test of time. As one author points out, Smithers is “the generally authoritative test of causation for all criminal offences” (J. Presser, “All for a Good Cause: The Need for Overhaul of the Smithers Test of Causation” (1994), 28 C.R. (4th) 178, at p. 178). In that regard, my colleague also recognizes that the Smithers causation standard is valid and applicable to all forms of homicide (at paras. 85 and 88):
As discussed above, I conclude that the test of causation is the same for all homicide offences and that it is not appropriate to apply a different standard of causation to the offences of manslaughter and murder. The applicable standard of causation has traditionally been articulated in this country on the basis of the language used in Smithers that the accused must be a cause of the death beyond de minimis. This standard has not been overruled in any subsequent decisions of this Court, including Harbottle.
. . .
There is only one standard of causation for homicide offences, including second degree murder. That standard may be expressed using different terminology, but it remains the standard expressed by this Court in the case of Smithers, supra. [Emphasis added.]
5 Having said so, my colleague suggests reformulating the Smithers beyond de minimis test, i.e., “a contributing cause [of death] that is not trivial or insignificant” in the language of a “significant contributing cause”. She asserts that (at para. 70):
There is a semantic debate as to whether “not insignificant” expresses a degree of causation lower than “significant”. This illustrates the difficulty in attempting to articulate nuances in this particular legal standard that are essentially meaningless.
6 Evidently, my colleague considers that this rephrasing is merely a matter of semantics and, in her view, it does not alter the current test. I respectfully disagree. In my opinion, this issue is a matter of substance, not semantics. There is a meaningful difference between expressing the standard as “a contributing cause that is not trivial or insignificant” and expressing it as a “significant contributing cause”. Changing the terminology of the Smithers test in this manner would drastically change its substance. On this point, I share Professor S. Yeo’s view in his article “Giving Substance to Legal Causation” (2000), 29 C.R. (5th) 215, at p. 219:
I submit that there is a material difference between describing something as “not an insignificant cause” on the one hand, and as “a significant cause” on the other. To ignore this difference is to ignore the reason for the use of a double negative in the first place. While the former description focuses the inquiry at the lower end of the scale of degrees of causation, the latter does not invoke such a focus. Using another set of words to illustrate my argument, when Mary says that she does not dislike John, she means, at most, that she is impartial towards him rather than that she likes him.
7 To claim that something not unimportant is important would be a sophism. Likewise, to consider things that are not dissimilar to be similar would amount to an erroneous interpretation. In the same vein, a substantial difference exists between the terms “not insignificant” and “significant”, and there is no doubt in my mind that to remove the double negative formulation from the Smithers causation test would effect a radical change to the law. I therefore agree with the position of both the respondent and the intervener that a “significant contributing cause” calls for a more direct causal relationship than the existing “not insignificant” or “not trivial” test, thus raising the standard from where it currently stands. As the respondent explains (see paras. 74 and 76 of the respondent’s factum):
It is further submitted that the term “significant cause” can also imply too high a causation standard. Like the term substantial, “significant” implies an elevated contribution, as the definition of the term includes “conveying information about the value of quantity . . . important, notable, consequential.” (The New Shorter Oxford Dictionary, supra at 2860); The Respondent respectfully disagrees with the analysis of Lambert J.A. in the Court of Appeal below . . . that the term significant can be equated with the term “not insignificant.” The term insignificant is defined as that which is “of no importance; trivial; trifling; contemptible.” (The New Shorter Oxford Dictionary, supra at 1379). Something that is not trivial or not trifling is not necessarily something that is important.
. . .
The imposition of a “substantial” or “significant” cause standard in a second degree murder case would permit a trier of fact to find that an accused did intend to cause the death of the victim, and that pursuant to that intent the accused contributed to the victim’s death in a manner that was not minimal, insignificant, or trivial, but then acquit the accused on the basis that the accused’s contribution could not be classified as an “important” [or “significant”] cause of death. . . . It is submitted that the wording of the standard which most accurately captures the proper broad causation threshold for second degree murder is that which instructs a jury that the accused’s conduct had to be a contributing cause of death which is more than insignificant, minimal, or trivial. [Emphasis added.]
(See also para. 55 of the intervener’s factum.)
8 Professor Yeo, in “Blamable Causation” (2000), 24 Crim. L.J. 144, makes an interesting observation in that regard (at p. 148):
The difference between this test [of a “significant contributing cause”] and the one of “beyond the de minimis range” is clearly seen when we place the discussion in the context of the tests for factual and blamable causation. First, the prosecution will have established factual causation if the triers of fact were satisfied that the proscribed result would not have occurred but for the defendant’s conduct. As noted earlier, this “but-for” test is made out if the defendant’s conduct was found to have been a more than trivial or negligible contribution of the result. Passing this initial test renders the defendant’s conduct a “contributing” cause to the result. The prosecution must then proceed to establish blamable causation by persuading the triers of fact that the defendant’s conduct was not just a contributing cause but that it “significantly” contributed to the result. [Emphasis added.]
9 Accordingly, I find that recasting the Smithers “beyond de minimis” test in the language of a “significant contributing cause” is unwarranted because it raises the threshold of causation for culpable homicide without any reasons for doing so and none, of course, is given since my colleague indicates that the proposed reformulation does not modify the Smithers standard.
10 Words have a meaning that should be given to them and different words often convey very different standards to the jury. In my view, describing a contributing cause as having a “significant” impact attaches a greater degree of influence or importance to it than do the words “not insignificant”. As a recent editorial of the Criminal Law Journal observes: “Semantics, popular usage of words and expressions, and common sense all have their respective critical roles to play in the determination of causation in the criminal law” (“Semantics and the threshold test for imputable causation” (2000), 24 Crim. L.J. 73, at pp. 74-75).
11 Moreover, it is worth emphasizing that language is the medium through which the law finds expression. As P. M. Tiersma, an American law professor and author, duly points out in Legal Language (1999), at p. 1:
Our law is a law of words. Although there are several major sources of law in the Anglo-American tradition, all consist of words. Morality or custom may be embedded in human behavior, but law -- virtually by definition -- comes into being through language. Thus, the legal profession focuses intensely on the words that constitute the law, whether in the form of statutes, regulations, or judicial opinions.
12 Language is the outward sign of our legal reasoning. The words we use provide a filter through which we view and acknowledge legal concepts (see G. A. Weissman, “Legal Esoterica: Reality is shaped by the language we use: ‘Jack and the Beanstalk’ as told by a judge, a psychiatrist, and an economist” (1986), 29 Advocate (Idaho) 22). It is therefore crucial to our analysis that we use exact language. For the introduction of his book The Word of the Law (1992), D. R. Klinck, a law professor at McGill University, finds inspiration in the teaching of Chinese philosopher Confucius: “When asked what he would do first if invited to administer a country, Confucius replied: ‘It would certainly be to correct language’” (p. 8). Confucius added: “If language be not in accordance with the truth of things, affairs cannot be carried on to success”. In Deeks v. Wells, [1931] O.R. 818, the Ontario Supreme Court, Appellate Division held that (at pp. 843-44):
Before leaving this branch of the inquiry, it may be well to mention a curious fallacy which ran through much of the plaintiff's argument and of which there is an occasional glimpse in the evidence -- it is made a matter of suspicion that Wells does not follow the terminology of the authorities he says he consulted. One would have thought it most natural for a literary man, writing a book for popular perusal, to clothe in his own language the historical facts taught him by his authorities rather than to use the terminology of the expert original. Where we have a subject like law -- in which a statement is to be accepted because of the position of the person who makes it, his precise words may be and in many cases are of importance and should be given verbatim, but this is not the case where the statement is one of a fact. [Emphasis added.]
13 As I have mentioned earlier, our reasoning is dictated by the specific words that are used to articulate a legal test or standard. Professor Klinck, supra, writes at p. 15: “A common example of the obvious continuity of reality is colour: the colours of the spectrum shade into each other; different languages draw lines at different places.”
14 In conclusion, I reiterate that the causation test in Smithers remains the law and to rephrase it in the language of a “significant contributing cause”, as my colleague suggests, would draw the line at a different place, thus drastically changing the law. I have found no legitimate reason to reformulate the Smithers test, rather it is my opinion that such alteration should be strenuously proscribed since it will elevate the threshold of causation. As a result, I consider the current language of “a contributing cause [of death] that is not trivial or insignificant” to be the correct formulation that trial judges should use when expressing to the jury the standard of causation for all homicide offences.
15 I would dismiss the appeal.
The judgment of Iacobucci, Major, Binnie, Arbour and LeBel JJ. was delivered by
Arbour J. --
I. Introduction
16 The present appeal raises the issue of causation in second degree murder. It requires a determination of the threshold test of causation that must be met before an accused may be held legally responsible for causing a victim’s death in a charge of second degree murder. We must also examine how the applicable standard of causation should be conveyed to the jury.
II. Factual Background
17 On Monday, August 21, 1995, Mrs. Clara Loski, a 95-year-old widow who lived alone in her house in Kelowna, British Columbia, was found dead in her bedroom. Her house had been robbed. Mrs. Loski was bound with electrical wire in a way that is referred to colloquially as “hog-tying”. Her hands were bound behind her back, her legs were brought upwards behind her back and tied, and her hands and feet were bound together. A red garment was tied around her head and neck and entrapped her chin. This garment formed a moderately tight ligature around her neck, but did not obstruct her nose or mouth.
18 One of Mrs. Loski’s neighbours, Deanna Taylor, testified that she was standing in her backyard smoking on the afternoon of Friday, August 18, 1995 when she heard Mrs. Loski’s door close and saw two male Caucasian youths leave through Mrs. Loski’s back gate and run down the alley.
19 Some 24 to 48 hours after Mrs. Loski was robbed and left hog-tied on her bed, she died. At some point she had fallen from the bed to the floor. The Crown’s medical expert, Dr. Roy, was of the opinion that the cause of death was asphyxiation due to upper airway obstruction.
20 The RCMP mounted an undercover operation with the appellant Nette as a target. In the course of this investigation, the appellant was induced to tell an undercover police officer, who was posing as a member of a criminal organization, about his involvement in the robbery and death of Mrs. Loski. This admission was recorded by the undercover officer and was put in evidence at trial.
21 At trial, the appellant testified in his own defence. He stated that he went to Mrs. Loski’s house alone on Saturday, August 19, 1995 just after midnight with the intention of breaking and entering her house. He testified that he knocked on the back door and it swung open on its own. He stated that it looked as if someone had already broken into the home. He testified that he found Mrs. Loski already dead in her bedroom and then left the home. With respect to the intercepted conversations obtained through the undercover operation, the appellant testified that he had made up the story about robbing and tying up Mrs. Loski in order to impress the undercover officer.
22 The only medical evidence at trial on the issue of cause of death was the evidence of Dr. Roy, the forensic pathologist who investigated Mrs. Loski’s death and who testified for the Crown. Dr. Roy concluded that Mrs. Loski died as a result of asphyxiation due to an upper airway obstruction. Dr. Roy could not isolate one factor from among the circumstances of Mrs. Loski’s death and state that it alone caused her death by asphyxiation. In his view, a number of factors contributed to the asphyxial process, in particular, her hog-tied position, the ligature around her neck, as well as her age and corresponding lack of muscle tone. In cross-examination, Dr. Roy agreed that other factors, including Mrs. Loski’s congestive heart failure and asthma may possibly have speeded up the process of asphyxiation.
23 The appellant was charged with first degree murder on the basis that he had committed murder while committing the offence of unlawfully confining Mrs. Loski. The 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 the appellant was therefore guilty of first degree murder pursuant to s. 231(5) of the Criminal Code, R.S.C. 1985, c. C-46 . The appellant was tried before a judge and jury. The jury returned a verdict of second degree murder and the Court of Appeal dismissed the appellant’s appeal from that verdict. The only ground of appeal both before the Court of Appeal and before us concerns the test of causation applicable to second degree murder.
III. Relevant Statutory Provisions
24 Criminal Code, R.S.C. 1985, c. C-46
222. (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.
(2) Homicide is culpable or not culpable.
(3) Homicide that is not culpable is not an offence.
(4) Culpable homicide is murder or manslaughter or infanticide.
(5) A person commits culpable homicide when he causes the death of a human being,
(a) by means of an unlawful act;
(b) by criminal negligence;
(c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or
(d) by wilfully frightening that human being, in the case of a child or sick person.
229. Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;
(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or
(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.
231. (1) Murder is first degree murder or second degree murder.
(2) Murder is first degree murder when it is planned and deliberate.
(3) Without limiting the generality of subsection (2), murder is planned and deliberate when it is committed pursuant to an arrangement under which money or anything of value passes or is intended to pass from one person to another, or is promised by one person to another, as consideration for that other's causing or assisting in causing the death of anyone or counselling another person to do any act causing or assisting in causing that death.
(4) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the victim is
(a) a police officer, police constable, constable, sheriff, deputy sheriff, sheriff's officer or other person employed for the preservation and maintenance of the public peace, acting in the course of his duties;
(b) a warden, deputy warden, instructor, keeper, jailer, guard or other officer or a permanent employee of a prison, acting in the course of his duties; or
(c) a person working in a prison with the permission of the prison authorities and acting in the course of his work therein.
(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:
(a) section 76 (hijacking an aircraft);
(b) section 271 (sexual assault);
(c) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm);
(d) section 273 (aggravated sexual assault);
(e) section 279 (kidnapping and forcible confinement); or
(f) section 279.1 (hostage taking).
(6) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the death is caused by that person while committing or attempting to commit an offence under section 264 and the person committing that offence intended to cause the person murdered to fear for the safety of the person murdered or the safety of anyone known to the person murdered.
(6.1) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when the death is caused while committing or attempting to commit an offence under section 81 for the benefit of, at the direction of or in association with a criminal organization.
(7) All murder that is not first degree murder is second degree murder.
IV. Judgments Below
A. British Columbia Supreme Court
25 The appellant was tried before a judge and jury. Wilkinson J., who presided over the trial, completed his charge to the jury on March 5, 1998. Dealing with the causation issue in relation to second degree murder, Wilkinson J. explained causation as follows:
The third element is that the accused must have caused the death. In connection with this element you must satisfy yourselves that the accused caused the death in two separate senses. First, are you satisfied beyond a reasonable doubt that the death of Mrs. Loski was caused by the acts of the accused Nette, by Mr. Quesnel, or both of them, rather than her death being caused by some other matter?
In this connection I must tell you that the law provides that as long as some action of the accused or a joint action of the two accused pursuant to a common intention contributed to her death and was more than a trivial cause thereof, as long as some action of theirs contributed to her death and was more than a trivial cause thereof, he may be found, for purposes of murder and manslaughter, to have caused her death notwithstanding that there were other causes involved for which he was or may not have been responsible.
Thus, if there was evidence that Mrs. Loski had died from causes totally unconnected with the actions of the accused he would not have caused her death, but if his or their common actions were one of the causes of her death and were more than a trivial cause, you may find that he caused her death if you are satisfied of that beyond a reasonable doubt.
The second sense in which you must make a decision, and this goes back to the joint or common plan, on this element of causing death is whether you are satisfied beyond a reasonable doubt that the accused caused Mrs. Loski’s death as opposed to the question of whether Mr. Quesnel caused her death.
26 As for causation in first degree murder, the trial judge said:
In order for the Crown to prove first degree murder under s. 231(5) :
1. The Crown must prove that the accused is guilty of the murder. You will have done that if you have proceeded this far.
2. That the accused’s participation in the murder was such that his actions were a substantial cause of her death.
Now, that is a distinction from second degree murder or manslaughter for there it only had to be more than a trivial cause, not a substantial cause of death.
3. That the accused is guilty of the underlying offence of unlawful confinement.
4. That the death of the victim was caused by the accused while he was committing the offence of unlawful confinement.
. . .
A substantial and high degree of blameworthiness above and beyond that of murder must be established in order to convict a person of first degree murder. A person may only be convicted of first degree murder under Section 231(5) if the Crown establishes that the actions of that person are of such a nature that they must be regarded as a substantial and integral cause of the death. That is, of course, a much more direct and substantive cause than the slight or trivial cause necessary to find second degree murder.
The substantial cause test requires that the accused play a very active role in the killing of the victim. In most cases that will mean that the accused’s own actions physically caused the death of the victim, although there are some instances where the accused’s actions will be considered the substantial cause of death although those actions have not physically caused the death. If you get to the point of dealing with first degree murder then you must review the evidence about cause of death all over again to decide if it is proved beyond a reasonable doubt, that this higher and stricter test of causation has been met.
27 The day after completing his charge to the jury, Wilkinson J. received a note from the jurors asking him to clarify the elements of first degree murder and the substantial cause test. In recharging the jurors on this issue, Wilkinson J. essentially reiterated what he had said about second degree murder and first degree murder in the original charge.
28 On two occasions, once in the main charge quoted above, and once in the re-charge, Wilkinson J. misspoke in describing the applicable standard of causation for second degree murder to the jury, describing it erroneously as “the slight or trivial cause necessary to find second degree murder” instead of describing the standard as “more than a trivial cause”. Overall, however, the charge and re-charge indicated that the applicable standard of causation for manslaughter and second degree murder was that the accused’s actions must be “more than a trivial cause” of the victim’s death while, for first degree murder, there was an additional causation requirement that the accused’s actions must be a “substantial cause” of the victim’s death.
B. British Columbia Court of Appeal (1999), 141 C.C.C. (3d) 130
(1) Lambert J.A.
29 The only issue before the Court of Appeal was the question of what standard of causation must be proved in order to support a conviction of second degree murder. Lambert J.A. concluded that the standard for legal causation set out in Smithers v. The Queen, [1978] 1 S.C.R. 506, applies to second degree murder. He concluded that the distinctions between first and second degree murder only come into play at the sentencing stage once it has been established that a murder has been committed. In support of the view that first degree murder is in essence a sentencing provision, Lambert J.A. referred to th