Chapter 3 Flashcards
To learn Chapter 3
When do we use Causation?
- more than one accused
- Intervening factors
What is Causation?
Meaning to establish a link between the conduct and the consequences
The crown must prove both legal and factual causation
The case of Trotta
- Parents were charged with various offences respecting the death of their baby. The father was convicted of second degree murder, aggravated assault and assault causing bodily harm and sentenced to life imprisonment without parole eligibility for 15 years.
- Charged with murder, aggravated assault, assault causing bodily harm
- multiple injuries
- “But for” would the baby have died even if the father did not assault him
Who is responsibile for answering the “but for” question?
The Crown
How does one establish causation?
The crown must answer the “but for” question
What is the Nette Test?
What is the causation of death
What are the two kinds of causation?
Factual and legal
What is factual causation?
Refers to fact of how the victim came to his or her death
- establish the “but for”
Why use the “but for?”
- To show that the accused’s conduct, the prohibited consequences would never have occurred.
- Easy to prove
- Can be determined by scientific medical, mechanical and expert evidence
What is legal causation?
Refers to whether the accused should be held responsible in law for the death that occurred. (Foreseeability)
- the conduct should be considered blameworthy to warrant criminal punishment
What is the “F word”
Foreseeability
- The consequences of one’s action is foreseeable , hence there is a causal link between the action and its consequences
- Foreseeability of harm or consequence of the death
What is Manslaughter?
When the accused commits unlawful act
What does the principle “take their victim as they find them mean”
The defendant is not entitled to make assumptions about the victim.
- Any characteristics which the victim happens to have must be taken into account in the judgement, whether the defendant could reasonably have known about them or not.
The case of Smithers (1977)
- Smithers got into a fight with Coby, threw two punches to the head and a kick in the victim’s stomach, he died in the hospital to “aspiration of vomit”
- Trial judge determined the act was “outside the deminisus range”
If the kick had not happened, would the victim had vomited - the kick was a significant contributing factor in causing death
- Appealed on the basis of insufficient evidence that smithers’ kick caused vomiting
SC : reworded the initial causation
What is the Smither’s Test?
- A test of factual causation (is a significant contributing cause of death)
- To establish factual causation, crown must prove the assaulted conduct was significant contributing cause of death.
How? By relying on physical evidence
What is the Commision of unlawful act
the mens rea of manslaughter
Nette (2001)
Hogtie a widow
The medical expert could not single out one cause of death
He was charged with 1st degree murder while committing the offence of unlawfully confining the victim
What is the factual causation of Nette Case?
In order prove factual causation, the crown must prove the smither’s test
Crown medical expert: the cause of death was asphyxiation due to upper airway obstruction, but he could not isolate one factpr or one cause of death amoung the circumstances of the victims death.
What is the Legal causation of the Nette Case?
Yes, the hogtie played a significant contributing cause of death
The SC decision: Smithers test applies to all culpable homicide
Was the conduct of the accused “a significant contributing cause” of death?
What did the Nette test replace?
The smithers test.
- The crown is establishing the “but for” and was the conduct of the accused a significant contributing cause of death
Harbottle (1993)
- Charged with 1st degree
- crown must prove the murder was planned and deliberate
Aiding and abetting (physically knowing, being there, providing material)
The accused and another man sexually assaulted a 17 year- old
The old man strangled her and Harbottle held her legs from resisting
Is Smither’s test adequate in the context of 1st degree murder? Yes!
- The SCC; test is not strict enough for charge of 1st degree
- The SCC decision: “the crown must establish that the accused has committed an act or series of acts which are of such nature that they must be regarded as a substantial and integral cause of death.”
The test requires to prove that the accused play a very active role (a physical one) in the killing
What is the Nette test establishing?
The factual causation of the case
What is the Harbottle test establishing?
The legal causation of the case
What test do you use for Mansalughter and 2nd degree?
Nette Test
What test do you use for 1st degree
Harbottle test
What is the Harbottle test?
crown establishes that the accused has committed an act or series of acts which are of such a nature that they must be regarded as a substantial and integral cause of the death
