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

New & Notable: Looking for Consent in all the Wrong Places

Lay over at Pearson...good chance to blog since I haven't for a week.  The recent case of R v Dippel, 2011 ABCA 129 is worthy of note - and provides a good introduction to my next blog on the recent ruling by the Supreme Court in R v JA, 2011 SCC 28.  

Alan Dippel, the respondent, was in attendance at his daughter's party at his house.  Also in attendance was a friend of his daughter, the complainant who was 24 years old.  The complainant, who was planning on staying over, had consumed some alcohol before going to the party and had a few drinks at the party; she was tired and decided to go to bed early.  She went to a bedroom, fully clothed, and laid down to sleep. 

The respondent was drinking that night as well.  He was described by those at the party as conducting himself in a "vulgar and outrageous" manner; he was intoxicated and propositioning anyone who would listen [para 3].  The Court of Appeal noted that it was "obvious that no one at the party, still conscious and alert, had any interest in reciprocating his overtures" [para 3].

Ultimately the respondent made his way to the bedroom where the complainant was fast asleep. He testified that he entered the room, laid down on the bed and fell asleep. When he awoke he turned over and cuddled up to the person beside him. The respondent then decided to start touching her "back and buttocks" trying to get some acknowledgement.  The respondent testified that when she "kind of snuggled back into me" he decided to fondle her breasts.  The respondent then claimed that the complainant raised her arm, which he took as an indication that "[s]he was giving me the green light" - although she had not uttered a single word. Thereafter, her pants were removed and he digitally penetrated her” [para 4].

The encounter ended when the complainant awoke to find she was being penetrated; she jumped from the bed and said "who are you".  She then pulled her pants up and ran out of the room [para 5].

At trial the respondent argued that complainant had consented or, in the alternative, he was honestly mistaken that she had. The trial judge found that the testimony of the respondent, with respect to his mistaken belief as to the complainant’s consent, raised a reasonable doubt and acquitted him.  The Crown appealed.

The Court of Appeal granted the Crown appeal and substituted a verdict of guilt; the court found error with the trial judge’s “understanding and application of the defence of mistaken belief” [para 28].

In dealing with the defence of mistaken belief as to consent the CA explored the premise for the accused so-called mistaken belief, namely that his belief was based on the complainant’s body movements. In rejecting this the court held that:

…ambiguous movements by an unconscious or semi-conscious person do not constitute the clear communication that is necessary to form the basis for a mistaken belief in consent. The respondent's own evidence acknowledges that he advanced the sexual contact based solely on the complainant's passivity; in other words, her lack of resistance and failure to object [para 18].

The Court went on to explain what the nature of this particular situation required.

Further, this is one of those situations that required an unequivocal communication of consent. The fact that the individuals were complete strangers and she was asleep at the time, would require a reasonable person in the respondent's position to clearly ascertain that the complainant was consenting to engage in sexual contact with him: R. v. Crangle, 2010 ONCA 451, 266 O.A.C. 299, leave to appeal to SCC refused: 33768 (December 23, 2010). The observations of Abella J.A. (as she then was), in R. v. Osvath (1996), 46 C.R. (4th) 124 at para. 29, 87 O.A.C. 274 (C.A.), a case factually very similar to the case at bar, are also apposite:

Anyone seeking sexual activity in these circumstances could hardly fail to know that he was obliged, at a minimum, to let the person from whom permission for such activity was sought, know who was seeking the consent. Consent is not given or refused in a vacuum - it is given or refused to a particular activity with a particular individual [emphasis added by Alberta Court of Appeal].

In the circumstances of this case, the court noted, the failure to have taken any such precautions must result in the defence mistaken belief being beyond the reach of the accused. [para 25]

The Court also made some apt comments on who bears the onus with respect to ascertaining consent.

Before concluding, we wish to make one further observation. In her Reasons for Judgment, the trial judge distinguished some of the cases considered by her because the complainants in those cases had "made it clear through previous communications that they were not interested in any sexual contact." With respect, that misplaced the legal responsibilities of the parties and distorts the law. To engage the protection of the criminal law, the complainant was not obliged to make a pre-emptive announcement before retiring to sleep that she did not wish to engage in sexual activity with anyone in the house. Like everyone else, she was entitled to sleep in an unsecured bedroom without fear of molestation. The onus fell on the respondent to take real steps that met the reasonable steps threshold to ensure that the complainant voluntarily agreed to engage in sexual activity with him. He failed to do so [para 26].

Of note this decision was penned before the recent SCC case of R v JA, 2011 SCC 28.  The court acknowledged this with the following notable conclusion:

Since preparing the foregoing, the Supreme Court has released its decision in R. v. J.A., 2011 SCC 28 (CanLII), which confirms our conclusion that consent to a sexual act requires the conscious decision of an operating mind to each and every sexual act: see paras. 36 and 42 [para 27].

 

DG Mack

Quotable Quote: No Need to Speculate...

Erland Wallace Mordue was convicted by a jury of first degree murder.  He appealed that conviction.  Mordue raised three grounds of appeal.  In dismissing the appeal the court offered the following quotable quote in relation to the Crown's case:

There was a strong case of planning and deliberation based on the appellant’s handwritten notes that refer to the murder and the suicide, and the fact that the appellant went to the victim’s home, cut the phone line, and waited for her while drinking beer and smoking for some period of time. As the appellant did not testify, there is no explanation that the jury could consider to put these circumstances in another light [para 3]; [emphasis added].

 

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

New & Notable: Nikolovski Identification

Identification cases are some of the most contentious and frequently appealed; the recent case of R v Adbi, 2011 ONCA 446 is yet another example.

Mustafa Abdi was in the car business; more specifically, he was in the business of exporting high end stolen automobiles.  The case against Abdi included the evidence of police officers who observed and videotaped a man, they alleged to be the respondent at a freight yard where stolen high end automobiles were being delivered.  The lead investigator and an officer who had been on scene later compared the video images of the male alleged to be the respondent with a digital copy of the respondent's driver's licence photo.  Both men testified that they believed that the respondent was the male in the surveillance video [paras 2-3].  There was also two pieces of circumstantial evidence which were corroborative, at least indirectly [para 2].

At trial the trial judge noted that the evidence "may be sufficient unless there is good reason for me to doubt the accuracy of identification that Police Officer Baxter gave".  The trial judge also viewed the video himself and offered the following:

I have looked again and again at the evidence to discern a number of other things including the height of the accused as opposed to the man in the grey jacket.  I do not have any evidence with respect to it, but my observation tells me it is consistent.  His facial features and structure...The type of haircut - many have it; the skin colour.  All those things are part of it - none determinative.  Glasses or not, as I have said before.

As I say, I am reluctant to substitute my view of that type of evidence for a witness that was there, but I have to tell you that a close observation by me leads me to the conclusion that the person in the digital photograph, the accused and the person in the grey coat are the same [para 5 OCA].

The respondent was convicted and appealed.

On appeal he argued that the video recordings were not of sufficient quality [para 6].  Rosenberg JA, writing for the court, noted that this issue was a question of fact for the trier of fact and the scope of review is limited to a consideration of whether the quality was such that it would be reasonable for a trier of fact to making a finding [para 6]: see R v Nikolovski, 1996 CanLII 158 (SCC).  After reviewing the video in this context, Rosenberg JA concluded:

The second clip, and the clip obviously relied upon by the trial judge, is much shorter in length, just over 30 seconds, but the person alleged to be the appellant is much closer to the camera.  The quality of the video is good and it is possible to make out this person’s features.  I cannot say that the trial judge’s conclusion is unreasonable [para 7].      

In so concluding Rosenberg JA noted that the length of the video does not make it "unsuitable for use in making an accurate identification" [para 8].  Rosenberg JA further noted that although the trial judge might have appeared to have delegated his responsibility to determine the identification issue it is clear when the entirety of the decision is read that the trial judge properly came to his own conclusion [para 9].

Appeal dismissed.

 

DG Mack

New & Notable: Cell Phone Evidence

A debate has been brewing for the last few years over the issue of cell phone evidence.  In Ontario there have been decisions holding that evidence about cell phone records, including interpreting the records, identifying tower locations and explaining the way in which phones communicate with towers is expert evidence requiring a voir dire; those decisions also held that the usual witnesses (corporate security personnel who gather the evidence and have, for several years testified in this area) are not "experts" on this issue: see R v Spackman, [2009] OJ No 1066 (SCJ) and R v MacFarlane, [2006] OJ No 4858 (SCJ). 

In Manitoba, on the other hand, there have been decisions holding that such evidence is not in fact "expert" evidence but rather it was factual evidence: see R v Korski, [2007] MJ No 275 (QB), aff'd 2009 MBCA 37.

In the recent case of R v Hamilton, 2011 ONCA 399 the Ontario Court of Appeal has sided with the Manitoba approach, implicitly overruling MacFarlane and Spackman - at least in part. In Hamilton, for the first time on appeal, the appellants argued that the trial judge erred in admitting the evidence of non-engineers and erred by failing to conduct a voir dire.  The Court of Appeal rejected this argument on the basis, inter alia, that the evidence in question is not expert evidence: 

...we are satisfied that the evidence given by the three employees of the carrier companies was factual evidence, not opinion evidence.  Each of them, by reason of their knowledge, observation and experience in dealing with cell phones for their respective companies could give the testimony they provided without being qualified as experts. They could testify about the times each appellant’s cell phone registered, the number calling and the number called, the duration of the call and the location of the towers at which the calls registered.  These were factual details on which the carriers based their billing practices.  Further, these employees had the knowledge and experience to testify about the general rule and its exceptions.  They did not have to understand the scientific and technical underpinnings of the rule or have an engineering degree to give this evidence. 

It is perhaps understandable why some courts in years past treated this kind of evidence as opinion evidence.  The introduction of cell phone evidence in criminal trials was in its infancy. Now, with the benefit of hindsight, we know that this evidence is routinely admitted: see, for example, R. v. Tomlinson, [2008] O.J. No. 817 (S.C.J.), R. v. H.B., [2009] O.J. No. 1088 (S.C.J.), R. v. Smith, [2009] O.J. No. 4544 (S.C.J.).

Even if evidence about the general rule and its exceptions could at one time have been considered opinion evidence, it is now simply factual evidence that witnesses with the knowledge and experience of Mr. Rickard, Mr. Iaccio and Ms. Hopper can testify about. They were not proffering a novel scientific or behavioral theory that was open to debate. They were testifying about uncontroversial facts related to the operation of cell phone networks. As the trial judge noted, their evidence was essentially the same as the evidence that could have been given by an engineer. Indeed, an engineer, Mr. Wang, gave largely the same evidence about the general rule at the preliminary inquiry. With the benefit of that testimony, no appellant insisted that an engineer give this evidence at trial. 

Importantly, none of the three cell phone witnesses was asked to give an opinion about the precise location of an appellant’s cell phone when a particular call was made or received. Evidence of that nature might well be opinion evidence and subject to the Mohan criteria: see R. v. Ranger, 2010 ONCA 759, at para. 17. Testimony about the general rule and its exceptions is not opinion evidence, and thus no voir dire was necessary. 

Accordingly, we do not give effect to the appellants’ challenge to the admissibility of the cell phone evidence. [paras 277-284] [emphasis added].

 

DG Mack

New & Notable: Sexual Assault and Consent

 

R v Bergen, 2011 ONCA 210, 2011 CarswellOnt 1696

The appellant was charged with sexual assault in relation to two separate victims. The appellant was 50 years old and worked as a licensed social worker in an adolescent mental health unit; one of the victims, SP, was an 18 patient who had been admitted for anxiety, depression, taking overdoses, cutting herself and issues involving prior experience of sexual abuse [para 2]. The charges arose out of a sexual relationship that occurred while the appellant was SP’s social worker. While the appellant argued that the relationship was consensual, the trial judge accepted the Crown’s argument that any alleged consent was vitiated by section 273.1(2)(c) of the Code.

On appeal the appellant argued that the trial judge erred by failing to consider SP’s subjective state of mind [para 6]. This argument was rejected. Notably, the Court of Appeal held that the trial judge properly considered evidence of an expert who testified about the nature of a therapist-patient relationship and evidence about how the “relationship progressed” [para 7].

DG Mack