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Break in Chain of Causation (Novus Actus Interveniens). R. v. Lozada
In R. v. Lozada (SCC, 2024) the Supreme Court of Canada considered 'causation' in a criminal context:II. The Trial Judge’s Instructions on Causation
[7] The trial judge began the causation instructions by setting out the proper test for legal causation: whether the particular appellant’s unlawful act was a significant contributing cause of death. In other words, was each appellant’s conduct “sufficiently connected with the death that it remained a significant contributing cause that continued until [Mr.] Khalid’s death without interruption” (A.R., vol. XXIV, at pp. 105-6)? The trial judge clarified that this inquiry does not simply amount to determining the medical cause of Mr. Khalid’s death but also concerned “the contribution of the [appellants] to that result” (p. 106).
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[12] ... the trial judge first repeated the overall “significant contributing cause” standard and explained that this standard relates to whether “it is still morally just and fair to hold the [appellants] legally responsible for the death” (A.R., vol. XXIV, at p. 220). The jury could ask itself whether the stabbing was “so overwhelming as to make the effect of the unlawful acts of the [appellants] merely part of the background” (p. 220). The jury could also ask itself whether the stabbing was “directly related to the unlawful acts of the [appellants]” (p. 220). The trial judge then twice stated that the jury might consider whether the stabbing was “extraordinary or unusual in the sense that an ordinary person would not reasonably foresee it” (pp. 220-21).
[13] The trial judge concluded his answer by listing three scenarios in which the fatal act would break the chain of causation:. If the fatal act was “an extraordinary and highly unusual occurrence, as opposed to being an event that could ordinarily, or naturally flow from the circumstances of this case” (p. 221);
. If the fatal act was “a reasonably unforeseeable act, remembering that the act of stabbing does not need to be reasonably foreseeable at the time of the particular [appellant’s] dangerous, unlawful act. If the continuation of assaults on [Mr.] Khalid and the risk of non-trivial bodily harm to [Mr.] Khalid from these continuing assaults was reasonably foreseeable at the time of the particular [appellant’s] dangerous, unlawful act, and flowed naturally from that dangerous, unlawful act, that may be enough” (pp. 221-22); or
. If the fatal act was “an intentional act of a third party acting independently from the [appellants]” (p. 222). ....
[15] In Maybin, at para. 28, this Court held that the overall test for legal causation for manslaughter remains the same as the earlier statements from Smithers v. The Queen, 1977 CanLII 7 (SCC), [1978] 1 S.C.R. 506, and R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488: were the accused’s unlawful acts a significant contributing cause of death? In cases where an intervening act is said to have broken the chain of causation between the accused’s acts and the victim’s death, asking whether the intervening act was reasonably foreseeable or was an independent factor can be helpful analytical aids, but the overall significant contributing cause test is the legal standard (paras. 26-29 and 44).
[16] With respect to the reasonable foreseeability analytical aid, there is no requirement that the specific subsequent attack be reasonably foreseeable. Instead, “it is sufficient if the general nature of the intervening act and the risk of non-trivial harm are objectively foreseeable at the time of the dangerous and unlawful acts” (Maybin, at para. 34). Karakatsanis J. also described the reasonable foreseeability inquiry as asking whether “the [intervening] acts and the harm that actually transpired flowed reasonably from the conduct” of the accused (para. 38). Conversely, Maybin does require that “[s]ome degree of specificity about the nature of the intervening act . . . be foreseeable” (para. 37). It does not “assist in addressing moral culpability to require merely that the risk of some non-trivial bodily harm is reasonably foreseeable” (para. 38).
[17] The circumstances of Maybin illustrate the type of specificity that is required when relying on the reasonable foreseeability analytical aid. Karakatsanis J. rejected the defence’s submission that it was pertinent that the bouncer’s assault of the unconscious victim was not reasonably foreseeable. It was sufficient for the trial judge to conclude that “in the context of an escalating bar fight, it was reasonably foreseeable that further non-trivial harm would be caused by the interventions of other patrons and bar staff” (para. 41). The relevant question was, more broadly, whether there was a risk of harm from third party interventions flowing from the accused’s conduct.
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[23] Causation is “case-specific and fact-driven” (Maybin, at para. 17). Trial judges must be accorded “the flexibility to put issues of causation to the jury in an intelligible fashion that is relevant to the circumstances of the case” (Nette, at para. 72). In this case, there was evidence that would have supported the conclusion that the fatal stabbing was of the same general nature as the violent assaults that were underway. “Mr. Khalid sustained multiple lacerations, abrasions and blunt force injuries to multiple parts of his body from the blows he received” after being attacked by several people (C.A. reasons, at para. 163, per Paciocco J.A.). There was evidence that a glass bottle was used in the course of the earlier altercation (C.A. reasons, at para. 5). As the jury could have reasoned that the reasonable foreseeability of continuing assaults, and the accompanying non-trivial bodily harm, was a factor proving legal causation, the trial judge did not inaccurately instruct the jury by telling it that reliance on this factor “may be enough”.
[24] Moreover, Maybin does not structure the jury’s reasonable foreseeability analysis by first requiring it to characterize the intervening act and then ask whether that type of act was reasonably foreseeable. Such an approach risks undermining Maybin’s holding that the specific intervening act need not be reasonably foreseeable (see paras. 34-35). While “[s]ome degree of specificity” about the nature of the intervening act must have been reasonably foreseeable, there is no requirement for objective foreseeability of the “precise future consequences” of the accused’s conduct (paras. 37-38). It is useful to recall that in Maybin, the Court concluded that it would be too specific to examine the foreseeability of the “bouncer’s assault of the unconscious victim” (paras. 39-40). Rather, the inquiry more broadly concerned the reasonable foreseeability of “interventions of other patrons and bar staff” (para. 41). Similarly, Jamal J.’s suggestion that jurors could have characterized the general nature of the intervening act as “assault with a weapon” is in my view too narrow a formulation, and inviting the jury to first characterize the intervening act could generate confusion (see para. 48). With respect to the reasonable foreseeability analytical aid, Maybin only requires that the jury consider whether the general nature of the intervening acts and accompanying risk of harm was reasonably foreseeable at the time of the accused’s unlawful acts, or whether the intervening acts flowed reasonably from the accused’s conduct.
[25] In sum, the trial judge’s legal causation instructions conveyed the correct overall test and focused the jury’s attention on each appellant’s contribution to Mr. Khalid’s death. The trial judge’s two statements that it “may be enough” to establish legal causation if the continuation of assaults on Mr. Khalid was reasonably foreseeable should be understood in the context of the full instructions. The jury would not have found this factor to be adequate to establish legal causation without also accepting that the continuation of assaults was of the same general nature as the stabbing, or that the stabbing flowed reasonably from the appellants’ conduct.
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[27] As this Court held, “[g]enuinely new issues are legally and factually distinct from the grounds of appeal raised by the parties . . . and cannot reasonably be said to stem from the issues as framed by the parties” (R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 30; see also Quan v. Cusson, 2009 SCC 62, [2009] 3 S.C.R. 712, at para. 39). However, the applicability of the doctrine of intervening acts in the context of co-principal liability under s. 21(1)(a) of the Criminal Code arises naturally from the issues in these appeals as framed by the appellants, in particular, whether the trial judge erred by inaccurately instructing the jury with respect to the “causation” element of unlawful act manslaughter. Further, the appellants had the opportunity to respond to the Crown’s new argument in their joint reply factum and at the oral hearing.
[28] The possibility of an intervening act occurring in the context of a group assault was contemplated by this Court in R. v. Strathdee, 2021 SCC 40, at para. 4:Joint/co‑principal liability flows whenever two or more individuals come together with an intention to commit an offence, are present during the commission of the offence, and contribute to its commission. In the context of manslaughter, triers of fact should focus on whether an accused’s actions were a significant contributing cause of death, rather than focusing on which perpetrator inflicted which wound or whether all of the wounds were caused by a single individual. In the context of group assaults, absent a discrete or intervening event, the actions of all assailants can constitute a significant contributing cause to all injuries sustained. [Emphasis added.] [29] The causation inquiry is case-specific and fact-driven. There is no single test or measure for determining whether a particular act has broken the chain of causation. The issue in considering joint liability as co-principals under s. 21(1)(a) is whether the unlawful acts of the accused were a significant contributing cause of the victim’s death (Maybin, at paras. 18-29). Strathdee leaves open the prospect of an instruction addressing “a discrete or intervening event” even in the case of co-participants in a group assault.
[30] Accordingly, I reject the Crown’s argument before this Court that in no case can the act of a co-participant in a group assault trigger the application of the intervening act doctrine. . Salomon c Matte-Thompson
In Salomon v. Matte‑Thompson (Ont CA, 2019) the Supreme Court of Canada commented as follows on when the chain of causation is broken:[91] I also agree with the Court of Appeal that the fraud did not break the causal link between Mr. Salomon’s faults and the respondents’ losses. It is true that a person who commits a fault is not liable for the consequences of a new event that the person had nothing to do with and that has no relationship to the initial fault. This is sometimes referred to as the principle of novus actus interveniens: that new event may break the direct relationship required under art. 1607 C.C.Q. between the fault and the injury. Two conditions must be met for this principle to apply, however. First, the causal link between the fault and the injury must be completely broken. Second, there must be a causal link between that new event and the injury. Otherwise, the initial fault is one of the faults that caused the injury, in which case an issue of apportionment of liability may arise (Baudouin, Deslauriers, Moore, at Nos. 1-691 to 1-692; Laval (Ville de) (Service de protection des citoyens, département de police et centre d’appels d’urgence 911) v. Ducharme, 2012 QCCA 2122 (CanLII), [2012] R.J.Q. 2090, at paras. 64-65; Lacombe v. André, 2003 CanLII 47946 (QC CA), [2003] R.J.Q. 720, at paras. 58-60 (C.A.)).
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