Chapter 3

Question 1

When do we use Causation?

Answer 1

• more than one accused
• Intervening factors

Question 2

What is Causation?

Answer 2

Meaning to establish a link between the conduct and the consequences

The crown must prove both legal and factual causation

Question 3

The case of Trotta

Answer 3

• 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

Question 4

Who is responsibile for answering the “but for” question?

Answer 4

The Crown

Question 5

How does one establish causation?

Answer 5

The crown must answer the “but for” question

Question 6

What is the Nette Test?

Answer 6

What is the causation of death

Question 7

What are the two kinds of causation?

Answer 7

Factual and legal

Question 8

What is factual causation?

Answer 8

Refers to fact of how the victim came to his or her death
- establish the “but for”

Question 9

Why use the “but for?”

Answer 9

• 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

Question 10

What is legal causation?

Answer 10

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

Question 11

What is the “F word”

Answer 11

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

Question 12

What is Manslaughter?

Answer 12

When the accused commits unlawful act

Question 13

What does the principle “take their victim as they find them mean”

Answer 13

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.

Question 14

The case of Smithers (1977)

Answer 14

• 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

Question 15

What is the Smither’s Test?

Answer 15

• 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

Question 16

What is the Commision of unlawful act

Answer 16

the mens rea of manslaughter

Question 17

Nette (2001)

Answer 17

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

Question 18

What is the factual causation of Nette Case?

Answer 18

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.

Question 19

What is the Legal causation of the Nette Case?

Answer 19

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?

Question 20

What did the Nette test replace?

Answer 20

The smithers test.
- The crown is establishing the “but for” and was the conduct of the accused a significant contributing cause of death

Question 21

Harbottle (1993)

Answer 21

• 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

Question 22

What is the Nette test establishing?

Answer 22

The factual causation of the case

Question 23

What is the Harbottle test establishing?

Answer 23

The legal causation of the case

Question 24

What test do you use for Mansalughter and 2nd degree?

Answer 24

Nette Test

Question 25

What test do you use for 1st degree

Answer 25

Harbottle test

Question 26

What is the Harbottle test?

Answer 26

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