Handguns: The cause of so much devastation

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Louis Woodcock apparently liked to carry around a handgun. On Boxing Day 2006 he allegedly was doing so on Yonge Street in Toronto. The Crown alleged he handed it to JSR who engaged in a shootout with other men. One of them shot and killed Jane Creba. Woodcock was charged with murder. He was convicted of manslaughter. He appealed: 2015 ONCA 535.

On appeal Woodcock advanced three grounds.

First, Woodcock alleged that the trial judge erred in relation to expert evidence. Two points were raised. One, that the evidence should not have been admitted as it was “common sense”. The trial judge rejected this position:

I am satisfied that this evidence is necessary to give the jury the tools to appreciate the evidence. It would not be surprising if most or all of the jurors will have never handled a handgun, much less carried an illegal firearm. Such an object is not an ordinary household object with which most persons can be presumed to be familiar. [Cited @12]

The Court of Appeal agreed.

Two, that the expert should not have been allowed to view the video in re-examination. Initially the trial judge ruled that the expert could not view the video in the presence of the jury and offer an opinion on it. However, during cross-examination defence counsel raised the video and challenged the expert on it. In light of this, the trial judge’s decision to allow it to be played in re-examination was reasonable.

Second, Woodcock alleged that the trial judge erred in her charge on causation. In essence, he alleged there was no direction on the issue of causation. In addressing this issue the court noted that it has previously considered the theory of causation in R v JSR, 2008 ONCA 544. The court then reviewed the charge given by the trial judge and held that it was sufficient; in doing so, the court cited, with approval, the following portion of the charge by the trial judge:

The Crown submits that this was, in effect, a mutual shootout, and that the issue of who fired the first shot is of no moment and only reflects who reacted the fastest. The Crown submits that Jane Creba died as a result of a decision by both the accused and Jeremiah Valentine to participate in a shootout on Yonge Street, and that the conduct of the accused in firing, or passing a gun so [J.S.R.] could fire it, was a contributing cause of the death. [Cited @22].

This theory of liability, together with the conduct of the accused (if accepted by the jury, as it apparently was) – which included carrying the handgun used by JSR and handing it to him – was sufficient to support the conviction.

Woodcock is another ruling in a long list of rulings on the prosecutions related to the killing of Jane Creba. It also emphasizes the generous approach to causation that courts are taking in cases of firearm related killings. This is appropriate and necessary. Handguns are designed for the purpose of killing (or at least seriously wounding) other human beings; that is their sole purpose. Those who choose to illegal carry such deadly weapons in our communities and brandish or provide them to others must be held responsible for the foreseeable consequences thereof. The convictions of Woodcock and others – even though they were not the ones that actually shot Jane – are appropriate and just.

DM

New & Notable: Another interesting causation case

The Ontario Court of Appeal released its decision in the case of R v Kippax, 2011 ONCA 766 on December 7, 2011.  It was a unanimous decision.  Watt JA wrote the decision.  Karakatsanis JA (as she then was) was also on the panel.  Karakatsanis J (as she is now) sat on the appeal in R v Maybin, 2010 BCCA 527 last week; a case I have blogged about in the past: Objective foresight or operative cause and A "Grizzly" night, but "Maybin" a prominent legal ruling.  Both cases present interesting causation issues.

Alan Kippax was driving his car, a Mercedes, on the evening of June 3, 2006.  His cousin Peter Kippax was following him driving his own car, a Porsche.  The two came to an intersection and came to a stop.  Allan was in front, Peter was behind.  The two cars then sped away from the intersection at a high rate of speed.  Alan abruptly changed lanes and Peter followed.  Peter lost control, however, his car slammed into another car.  Peter was killed instantly.  Alan was ultimately charged with two counts of dangerous driving causing bodily harm and two counts of dangerous driving causing bodily harm.

Alan was convicted and appealed.   

One of the grounds of appeal related to a complaint about the trial judge's finding on causation and specifically on factual causation [para 14].  That ground of appeal was dismissed.

In dismissing the appeal Watt JA explained that factual causation is concerned with how the victim died and has nothing to do with "intention, foresight or risk" [para 22-23].  With respect to factual causation, Watt JA concluded: "The Crown need only prove that an accused's conduct was a significant contributing cause of the death..." [para 24].

Turning to legal causation, Watt JA explained that this has to do with whether an accused should be held responsible for one's death.  In negligence based offences Watt JA held that reasonable foreseeability is a relevant consideration (citing R v Shilon, 2006 CarswellOnt 9888 (CA)).  While independent intervening acts can break the chain of causation, it will not be broken "where an accused intentionally produced the outcome, reckless brought it about, or if the ordinarily circumspect person would have seen it as a likely consequence of his or her own conduct: R v Maybin, 2010 BCCA 527 at para 35".

Based on this approach to the law, Watt JA dismissed the ground of appeal.  There was no palpable or overriding error in the finding of factual causation.  Factual causation was supported by the findings that the "cumulative force of evidence of excessive speed, inclement weather, compromised road conditions, inherently dangerous driving manoeuvres and the close physical proximity of the two speeding vehicles" [para 31].  In conclusion Watt JA noted there could be no complaint about the finding that factual causation had been made out and that the argument was more properly one relating to legal causation: "It may also be debatable whether what is now advanced as a flaw in the analysis of factual causation is not more appropriately a consideration of legal causation" [para 33].

DG Mack

Pending & Prominent: Objective foresight or operative cause...

On July 14 I blogged about R v Maybin, a case that was argued yesterday before the Supreme Court: A "Grizzly" Night, but "Maybin" a Prominent Legal Ruling.  It presents a very interesting legal issue that has received different treatment by appellate courts across the country [see for example: R v Shilon, 2006 CarswellOnt 9888 (CA); R v JSR, 2008 ONCA 544; R v Sinclair, 2009 MBCA 71].  The issue, as it arises from the facts in Maybin, is whether the Maybin brothers are liable for the death of the victim where, as the trial judge found, the factual cause of death could not be directly attributed to their attack.

Briefly, the facts are that Matthew and Timoth Maybin, two brothers, were playing pool at the Grizzly Bar Pub in Nanaimo when Michael Brophy, who was talking to a young lady, happened to move one of their balls.  The Maybin brothers did not take kindly to this and attacked Brophy.  Their sudden and violent attack left Brophy a "standing knockout" and he fell unconscious on the pool table.  Buddha Gains, a bouncer at the Pub, came rushing over and decided to once again strike Brophy in the head [paras 7-11]. 

Brophy died later that same day as a result of injuries he received from those assaults.  The medical cause of death was determined to be a subarachnoid haemorrhage in the brain [para 12].

Yesterday during argument the central - or at least most interesting - discussion was over what test should be applied to determine the possible culpability of the Maybin brothers. 

Crown counsel for the BC AG argued that the test should be one of objective foreseeability.  In other words, was it objectively foreseeable that having attack and left Brophy unconscious, in those circumstances, is it reasonably foreseeable that he might suffer further non-trivial bodily harm.  Put another way, the test was posed as whether the subsequent act (here the attack by Gains) was within the "scope of risk". 

Crown counsel for the ON AG (intervenor) argued that the test should be one of "operative cause".  In other words, relying on the test in R v Nette, 2001 SCC 78 that the accused must be a significant contributing cause of death, the operative test asks whether an intervening act breaks the chain such that the initial act is no longer a significant contributing cause of the death.  In this test the subsequent act need not be objectively foreseeable.

The practical difference between these tests may not be apparent at first blush.  During oral argument yesterday, however, the examples raised from the Justices highlighted the potential distinctions.  One example was that a victim is beating to unconsciousness and left in a building.  There is subsequently an earthquake and the victim dies when the building collapses.  Would either approach impose liability on the attacker in this scenario.  

Under the objective foreseeability test the attacker would not likely be held liable (as conceded by the BC AG).  The earthquake was not objectively foreseeable.  This would even appear to be so where there had been alarms warning of the impending earthquake that permitted others to escape.

Under the operative cause test, however, if others, who were in equal positions in the building to the unconscious victim, were able to escape then the initial attack and unconscious state continued to be an operative cause and could be seen as a significant contributing cause of the death. 

The other example that helps illustrate the difference in these approaches is the drowning example flowing from R v Hallett, [2969] SASR 141.  In that scenario the victim was beating and left unconscious on the beach.  Later the tide came in and the victim drowned.  Under either approach the attacker would be liable for manslaughter in this scenario.  However, change one fact - a tidal wave occurs and drowns the victim.

Under the objective foreseeability test the attacker would not likely be culpable as the tidal wave was not objectively foreseeable.

Under the operative cause test it is not as clear.  If the victim would otherwise have been on the beach but would not have been able to avoid the tidal wave even if conscious, then the tidal wave breaks the chain of causation and the attack and unconscious state are no longer a significant contributing cause.  However, if the others on the beach avoided the tidal wave so too could the victim and the attack and unconscious state could then be seen to be a significant contributing cause of death.

The Supreme Court's ruling in Maybin will be an important one.  It will clarify the law in an area where there are differing views on the legal test to be applied. 

While the objective foreseeability test is easy to understand and apply, it does potentially miss imposing liability in certain circumstances where liability should be imposed.  Should a person whose acts are a significant contributing cause of death avoid liability because a subsequent act was not reasonably foreseeable?  The earthquake example is a good one in this regard.  Despite the earthquake not being reasonably foreseeable, if others in the same position as the victim - in the same area of the building - were able to avoid death in the collapsing building, the attacker's actions could fairly be characterized as a significant contributing cause of death.  In that scenario, it is just to impose liability.  The objective foreseeability test would fail in this scenario and accordingly, the operative cause test should be adopted.

 

DG Mack

Pending & Prominent: A "Grizzly" Night but "Maybin" a Prominent Legal Ruling

A case which has interested me for some time now, and is currently on appeal to the Supreme Court, prompted me to create a new category for my blog: Pending and Prominent. R v Maybin, 2010 BCCA 527 presents the Court with very interesting legal issues relating to factual and legal causation and to consider the diverging approaches to the particular issue raised in that case that have arisen across the country.

Matthew and Timoth Maybin, two brothers, apparently enjoyed playing pool.  On October 21, 2006 they were playing pool at the Grizzly Bar Pub in Nanaimo when Michael Brophy, who was talking to a young lady, happened to move one of their balls.  The Maybin brothers did not take kindly to this and attacked Brophy.  Their sudden and violent attack left Brophy a "standing knockout" and he fell unconscious on the pool table.  Buddha Gains, a bouncer at the Pub, came rushing over and decided to once again strike Brophy in the head [paras 7-11]. 

Brophy died later that same day as a result of injuries he received from those assaults.  The medical cause of death was determined to be a subarachnoid haemorrhage in the brain [para 12].

All three men were charged and jointly tried.  After trial all three were acquitted.  In acquitting all three men the trial judge held, inter alia:

In order to succeed in proving that Timothy Maybin is guilty of manslaughter, the Crown must prove beyond a reasonable doubt that he struck a blow which was the sole cause, or a significant contributing cause, of the fatal injury inflicted on Michael Brophy.  The evidence does not support the inference that either of those two propositions is true, beyond a reasonable doubt.  As a result, Timothy Maybin cannot be found guilty of manslaughter. 

It must follow that Matthew Maybin cannot be found guilty of manslaughter, because the only way he could be found guilty is by proving that he aided or abetted the commission of manslaughter by Timothy Maybin.

In order to prove that Buddha Gains is guilty of manslaughter, it must be proved beyond a reasonable doubt that the blow he struck was the sole cause, or a significant contributing cause of the fatal injury to Michael Brophy.  As with Timothy Maybin, the evidence does not support either inference beyond a reasonable doubt Buddha Gains cannot be found guilty of manslaughter [para 19 CA].

The Crown appealed.

Ryan JA, for the majority, allowed the Crown's appeal in relation to the Maybin brothers; the appeal in relation to Gains was dismissed.

Dealing first with factual causation, Ryan JA held as follows: 

...the trial judge failed to fully examine the factual cause of Mr. Brophy’s death, ended his factual inquiry early and never reached the question whether anyone should be held legally responsible for the death of Michael Brophy...the trial judge ended his examination of the factual cause of death once he concluded he could not say which blow or combination of blows administered by the Maybin brothers and Mr. Gains caused the death of Mr. Brophy.  This focus was not wrong, but its scope was too narrow.

The Maybins’ punches did more to Mr. Brophy than cause bruising and bleeding to his face and head. Another product of their assault was that Mr. Brophy was rendered unconscious, tumbling face down onto the pool table where he became a target for Mr. Gains. As a result, Mr. Brophy died. Given these facts, it cannot be open to dispute that the Maybin brothers were one of the factual causes of Mr. Brophy’s death. Their blows either killed Mr. Brophy or at the very least rendered him unconscious and exposed to the attack of Mr. Gains. But for their actions, Mr. Brophy would not have died.

Given that Mr. Brophy's death was a consequence of the actions of the Maybin brothers and thus a factual cause, the trial judge was required to ask, but did not, whether they were also legally responsible for that outcome [paras 25 and 26].

Turning to legal causation Ryan JA noted that the respondent Maybin brothers argued that due to the "intervening act" - the assault of Gains - they could not be held liable for the death.  In considering this argument Ryan JA turned to the cases of R v Shilon, 2006 CarswellOnt 9888 (CA) and R v Sinclair, 2009 MBCA 71.  After discussing the applicable tests in those cases, Ryan JA, preferring the approach in Shilon, offered the following conclusion:

...I agree with the Crown that there is a reasonable possibility that a trier of fact could conclude that it was reasonably foreseeable that the Maybins’ assault would provoke the intervention of others, perhaps the bar staff, with resulting non-trivial harm. If that were found to be the case it would follow that their contribution to Mr. Brophy’s death would be outside the de minimus range.

It follows that I am of the view that there must be a new trial on the charge of manslaughter for both Timothy and Matthew Maybin [paras 43-44].

On appeal to the Supreme Court, the central issue will undoubtedly revolve around which of the two approaches to intervening act should be followed. 

The Court will have to consider the Shilon approach which is focused on reasonable foreseeability of future non-trivial harm.  Under this approach the relevant inquiry is, at the time of the first impugned act, did the first actor reasonably foresee that a subsequent act would occur that would inflict non-trivial bodily harm.  If so, than the first actor may be liable for manslaughter.  Under this approach, the precise act need not be foreseen, so long as the first actor foresees that an act might occur which would cause non-trivial bodily harm.

The Court will similarly have to consider the Sinclair approach which is focused on whether the subsequent act was "extraordinary" or "unusual".  In this approach the focus is retrospective - not prospective as in Shilon.  In this approach the Court considers the subsequent act and determines if it was "extraordinary" or "unusual" to the extent that it constitutes an intervening act. 

The Court may also consider if both test can co-exist and apply when and where appropriate.

Maybin presents an interesting issue for the Court to consider and one that is prime for consideration.  Ultimately, in my view, the majority of the Court of Appeal correctly found that the trial judge erred in not considering the issue of legal causation and a new trial should be ordered.  Regardless, Maybin is Pending & Prominent.

 

DG Mack