Maybe We Have Clarity in Causation: R v Maybin

The law of causation is scrutinized frequently in Canadian criminal law, frequently leading to its revision and redefinition; Canadian courts have often attempted to fine-tune approaches that enable the determination of causation. The enormous emphasis the courts place on this determination is reflected in issues of public policy. Even more important is the underlying philosophy behind criminal law, especially that the morally innocent accused should not be punished. On 18 May 2012, the Supreme Court of Canada (“SCC”) considered the principle of causation once again, along with its closely related exception, the doctrine of the intervening act, to determine when the latter absolves the accused of legal responsibility of committing the wrongful act. The case was R. v. Maybin 2012 SCC 24 [Maybin].

Facts

On appeal from the British Columbia Court of Appeal (“BCCOA”), the facts of the case revolved around a barroom altercation between the victim, the two sibling defendants and the bouncer of the establishment. The defendants appealed, bringing the case to the Supreme Court. While the two brothers (Timothy and Matthew Maybin) played pool in the early hours of 21 October 2006, the victim, Michael Brophy, was involved in a conversation with a female patron of the bar. At some point, Brophy touched a ball on the pool table, upsetting the Maybin brothers, who were still playing their game. As a result, Timothy and Matthew Maybin began to punch Brophy in the head, with Timothy eventually delivering a blow that caused Brophy to fall face forward on the pool table. He became unconscious. Since the bar was crowded, and considerable commotion had commenced since the altercation, the bouncer, Buddha Gains, arrived on scene. Upon hearing, albeit mistakenly, that Brophy was responsible for starting the fight, Gains proceeded to punch him in the back of the head.  The combination of punches caused internal brain hemorrhaging in Brophy’s head; he died from his injuries later in the day.

In court, the trial judge found that the medical evidence could not distinguish which punch had caused the death. Thus, he had to acquit all three of the accused. Contrary to the initial judgment, the BCCOA determined that factual causation, based on the ‘but-for’ test, had been found. The appellate court therefore decided that the trial judge’s ruling was too narrowly based on medical evidence without considering causation, and that the chain of causation had not been broken by Buddha Gains’ intervening act of punching the unconscious victim. The Supreme Court largely agreed with the majority’s approach in the BCCOA ruling, and further clarified that, as per the cases of R. v Smithers [1978] 1 SCR 506 [Smithers] and R v Nette, 2001 SCC 78 [Nette] that the

“factual cause is not limited to the direct or immediate cause, nor is it limited to the most significant cause” (Maybin, para 20).

Rather, the focus is still the wrongful act, but for which the victim would still be alive.

Analysis and Implications

The SCC framed their issues as the following:

1. Whether the trial judge erred in failing to address whether the appellants’ assaults were in fact a cause of death?
2. Was it open to the trial judge to find that the appellants’ assaults remained a significant contributing cause of death despite the intervening act of the bouncer because (a) the intervening act was reasonably foreseeable; or (b) the intervening act was not an intentional, independent act?

After determining that the BCCOA was correct in unanimously determining that the trial judge should have found factual causation.the SCC agreed that the relevant test should be to consider if, but for the actions of the Maybin brothers, Brophy would still be alive. Citing the inclusivity of factual causation, the SCC reiterated that its primary purpose was to inquire about “how the victim came to his or her death,” (Maybin, para 15) given the facts of the case. The SCC established that the contributing causes of death need only extend beyond the de minimis range, and do not need to be limited by the direct, immediate and significant causes (Maybinm para 20). Thus, the scope of the factual cause was and remains considerably extensive. Furthermore, the SCC underlined the holding in Nette: there need not be polarizing extremes with respect to factual causation; just because a single, conclusive cause of death cannot be established does not automatically mean that there were multiple operative causes in action. That is, Nette holds that the courts must not lose focus of the primary question in manslaughter cases, i.e. whether the accused’s actions caused the victim’s death.

To counter the broad scope established by factual causation, and to consider whether the bouncer, Buddha Gains’ act of punching the unconscious victim could have been the intervening cause that could sever the appellants’ connection to Brophy’s death, the SCC turned to the concept of legal causation. Specifically, it considered the two approaches employed by the majority and minority in the BCCOA ruling, ultimately agreeing that the majority’s “reasonable foreseeability approach” was the preferred one (Maybin, paras 23-50).

The majority’s approach centered on the standard set out in R v Shilom, 240 CCC (3d) 401, in which a trier of fact was left to determine

“whether the intervening act was objectively or reasonably foreseeable.”

The SCC viewed this within the realm of fairness and justice, asking whether it was fair to consider the appellants responsible for a final result, if their initial act was interrupted by another one, particularly if the latter act was more serious. Recognizing that this finding could lead to confusing and inconsistent interpretation, the SCC further clarified that the criteria need only consider the “general nature” of the intervening act and the harm caused, in order to satisfy the reasonable foreseeability sub-criterion (Maybin, paras 57-59).

In contrast, the minority of the BCCOA adopted the test in R v Sinclair, 2010 SCC 35, asking whether Buddha Gains’ punch constituted an independent and intervening act that was serious enough to absolve the Maybins of culpability in Brophy’s death. The SCC clarified that an intervening act could be considered independent, if it did not arise as a result of the first, and if its effects could override the effects of the first in its seriousness. By looking at the facts of the case, SCC then determined that Buddha Gains’ punch arose as a result of the initial altercation that was started by the Maybins. Additionally, it was the punches thrown by the Maybins that left Brophy in a vulnerable position to receive Gains’ single punch. As a result, the SCC refused to accept that the acts of the brothers and the bouncer were separate, thereby shifting the definition of what an independent and intervening act is away from previous case law.

The ruling is the latest in the spectrum in the jurisprudence of the law of causation. The SCC continued to emphasize that the core issue, namely whether the accused’s actions caused the death of the victim, must not be overwhelmed by complicated analytical approaches. Whether the ruling clarifies the matter for lower courts across the country, however, remains to be seen.