R v Maybin: A Sweeping Test of Accountability or a Standardless Sweep?

The Supreme Court of Canada’s decision in R v Maybin, 2012 SCC 24 is the Court’s latest foray into causality in the context of criminal liability. The decision is arguably the Court’s most important statement of the law since R v Nette, [2001] 3 S.C.R. 488.  If anything, Maybin serves to broaden an approach to causality which has already been described as creating “a test of sweeping accountability”.

Background and Facts

The facts in Maybin are as straightforward as they come. The two accused Maybin brothers were playing pool in a local bar when their victim touched a pool ball in an allegedly provocative manner. The two brothers reacted by repeatedly punching the victim in the face and head until he collapsed unconscious on the pool table.  After a few seconds, the bar’s bouncer, Buddha Gains, intervened, deciding to gratuitously punch the unconscious victim once in the head.  The deceased later died as a result of bleeding in his brain.

At trial, the accused and bouncer were acquitted of manslaughter. The medical evidence was ambiguous on which of the several blows caused the deceased to die.  Although the trial judge found that all three accused had assaulted the deceased, it was possible that the death was caused by the accused or the bouncer, or by some combination of all their actions. As a result, the trial judge had a reasonable doubt that either the accused or the bouncer’s blows were the sole or significant contributing cause of the death. In effect, the trial judge found that the bouncer’s acts may have been an intervening act or novus actus interveniens.

A majority of British Columbia Court of Appeal reversed the trial judge’s ruling. However, in doing so, the Court of Appeal split on the proper approach to analyzing intervening causes. The majority (per Ryan J.A.) held that, when faced with a possible break in the chain of causation, the proper approach was to consider whether the intervening harmful act would have been “reasonably foreseeable” to the accused. In this case, the majority held that it was reasonably foreseeable that assaulting someone in a crowded bar might cause bar staff to intervene and that this might result in nontrivial harm to the victim.  Since the bouncer’s actions were foreseeable it was open to the trial judge to find the accused guilty of manslaughter.

Chief Justice Finch dissented holding that the proper approach was to consider whether intervening act was an independent factor that severed the impact of the accused’s action.  In other words, the question was whether the bouncer’s actions were in law, the sole cause of the victim’s death. Unlike the majority, Chief Justice Finch did not consider the bouncer’s act of punching his unconscious victim to be foreseeable.  He held that the bouncer’s intentional assault was an intervening act severing the chain of causation.

The Judgment

The Court’s reasons in Maybin were given by Madam Justice Karakatsanis. Rather than deciding between the “reasonable foreseeability” and the “independent act” theories of intervening causes, Karakatsanis J. held that both approaches could be useful “in assessing legal causation depending on the specific factual matrix.” She explained that “neither [theory] is determinative of whether an intervening act severs the chain of causation so that an accused act is not a significant contributing cause.” In the Court’s view, these two approaches were merely,

“tools to assist in addressing the test for legal causation set out in Smithers v. The Queen, [1978] 1 S.C.R. 506, and confirmed in R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488:  Were the unlawful acts of the appellants a significant contributing cause of death?”

In coming to this conclusion, Karakatsanis J. engaged in a sustained discussion of the role an “intervening cause” might play in causality.  Importantly, the Court appeared to recognize that deciding whether an intervening act breaks the chain of causality involves imputing liability.  Accordingly, “[n]either an unforeseeable intervening act nor an independent intervening act is necessarily a sufficient condition to break the chain of legal causation” (para. 28). In the result, the Court dismissed the appeal and found that it was open on the trial judge’s finding of fact to conclude “that the general nature of the intervening act and the accompanying risk of harm were reasonably foreseeable; and that the act was in direct response to the appellant’s actions.” (para. 61). The case was remitted back for retrial.

Implications of the Decision

The Court’s decision in Maybin is unfortunate for several reasons. In the first place, the Court declined to identify a predictable and manageable approach to intervening acts. Although there was room for disagreement on the merits of the “independent act” or “reasonable foreseeability” theories, the Court has arguably confused matters by endorsing both approaches. It is important to keep in mind that Maybin will likely have practical implications at trial. Questions of causality rarely arise in trial courts except in murder and/or manslaughter cases. These are among the few remaining offences that are regularly tried by juries.  They are also offences that involve the most serious penalties known to Canadian law.  In the circumstances, the Court would have done better to adopt a single standard that could be more comprehensible to jurors.

A further reason to be concerned is that the Court has specifically permitted trial courts (and hence juries) to rely on a “reasonable foreseeability” standard.  One need only look to the application of this standard in tort law to understand just how broad a standard it is.  The Court in Maybin also held that an accused need not foresee any particular type of harm (i.e., a punch to the head) but only that some form of nontrivial harm could occur (Maybin, supra at paras. 34 -35).  Consider what this could mean. What, for example, would the Court say if the bouncer in Maybin had pulled out a pistol and shot the deceased rather than punching him? What, if instead, he stabbed the unconscious victim?  Was the mere fact that some form of harm was foreseeable enough to impute liability in those circumstances?  Surely the specific type of harm must play some role in deciding the question of causality.

This brings me to my last observation.  Not only should the Court have adopted a single approach to intervening causes, but it ought to have preferred to the approach taken by Chief Justice Finch in dissent.  Although the Court noted that causality is fundamentally a legal test, it does not seem to have internalized the policy and value laden nature of the inquiry. In truth, the inquiry into causation involves a decision about whether we should hold an accused responsible. As has often been observed, this is not a scientific inquiry but a moral one. The Court in Maybin repeatedly emphasizes that the inquiry is about deciding whether an accused was a “significant contributing cause”. However, this begs the question of how one goes about doing this when a third party engages in some act that may be largely unpredictable in its specifics. The fact that some form of nontrivial harm is foreseeable does little to assist the trier of fact.

Although not without its problems, I suggest that the dissenting opinion of Chief Justice Finch offers a better approach to answering this question.  Chief Justice Finch relies on well-known line of case beginning with R v Pagett (1983), 76 Cr. App. R. 279 (C.A.) and emphasizes the independent responsibility of a third-party intervener.  In my view, Finch C.J.C. was correct that the voluntary acts (and criminal intervention) of an independent third-party can sever the chain of causation depending upon the facts. Moreover, applying the “independent act” theory directs our attention toward the real substantive issue at stake: namely, when should we hold a person who is merely causally connected to a crime liable for it?

The Court in Maybin is likely correct that in the vast majority of cases both the “reasonable foreseeability” and “independent act” theories would yield the same result.  However, there are a small, but important number of cases, where it would be wrong to impute liability simply because the accused could foresee some non-specified form of foreseeable harm.  As a result of Maybin, the common law test of causation is now not only a “test of sweeping accountability”, but an increasingly standardless one.

Micah Rankin is an assistant professor at the Faculty of Law at Thompson Rivers University, and a guest contributor to TheCourt.ca.