R.c.Nette


 * __Facts:__** A 95-year-old woman was found dead in the bedroom of her house, in which a robbery had occurred. Her hands and feet were bound and a garment was tied moderately tightly around her neck. The crown's medical expert determined that the cause of death was asphyxiation and that the victim had died 24 to 48 hours after being robbed and tied. The woman's neighbour testified that she had seen two young men run from the house on the afternoon three days before the woman was found. An RCMP operation targeted the appellant and induced him to tell an undercover officer of his involvement in the woman's robbery and death. The appellant was charged with first degree murder on the grounds that the murder had taken place while the victim was forcibly confined.

__Judicial History:__ Trial - Appellant found guilty of second degree murder pursuant to s. 231(5) of the Criminal Code. Court of Appeal (concerning test of causation applicable to second degree murder) - appeal dismissed.

__Appeal__ is for a new trial should be ordered on the ground that the trial judge misdirected the jury on the standard of causation applicable to second degree murder. //Basis of this appeal: there is one standard of causation that may be applied to all forms of homicide. That standard should be conveyed to the jury by using the words "substantial cause" as applied to the offence of first degree murder in Harbottle. Trial judge was wrong in instructing the jury that Smithers standard of "beyond de minimis" applied to second degree murder.//

__**Issues:**__ What is the test of causation applicable to second degree murder? Is the charge in this case of second degree murder proper?


 * __Held:__** Appeal dismissed. The accused must have been more than an insignificant or trivial cause of death; this standard applies to all homicide offences. When no multiple causation is involved (as in this case), there is no need for a distinction between "beyond //de minimis//" and "substantial cause"; the charge in this case if proper.

__**Reasoning:** A. Terminology__ On the standard of causation for homicide offences:
 * The choice between the terminologies "beyond //de minimis//" and "substantial cause" does not reflect the decision required in this case. There are two distinct questions:
 * a) what is the standard of causation for second degree murder?
 * b) how should the standard of causation for second degree murder be expressed in charging the jury
 * Causation:**
 * **Factual** (but-for) causation is concerned with how the victim came to her death and the contribution of the accused the the result.
 * **Legal** (imputable) causation is concerned with whether the accused person can be held responsible in law for the death, in reflection on the fundamental principles of criminal justice. A moral reaction by which to determine imputability.
 * Unusual for an issue of causation to arise when is it established that accused had a //subjective// foresight of death or harm likely to cause death as required to sustain a murder conviction.
 * Law of causation both legally developed and expressed in provisions of the Criminal Code - see ss. 225, 222(5)(c) and (d).


 * Comparison with //Harbottle//:**
 * **Appellant** argues that //Harbottle// should not be interpreted as having adopted a more stringent legal test of causation for multiple cause cases, and that the issue in Harbottle is whether the accused played an active enough role in the killing to be liable for first degree murder. Terminology of "substantive cause" should be used to charge jury for all homicide offences; it would therefore be of an equally stringent standard as "beyond //de minimis//" (//Smithers//). The crystallized test of "substantial cause" clarifies the language of causation not to raise the threshold of causation, but rather to help the jury focus on the correct standard.
 * **L'Heureux-Dube J**.: Appellant's argument is inconsistent in the present case. One one hand "substantial cause" (Harbottle) does not raise the causation threshold. On the other, use of the Smithers terminology (beyond //de minimis//) instead of "substantial cause" is a serious enough error of law that if justifies overturning the conviction for second degree murder.

The //Harbottle// test of "Substantial cause" does not stress a higher causation requirement to raise murder to the first degree, but a higher degree of participation in the act on the part of the accused; it should not be used to describe the requisite degree of causation for homicide offences.
 * Comparison of "substantial cause" and "beyond de minimis"**
 * "Causation" as required under s. 231(5) refers to the degree of legal causation; once a factual finding of cause is complete, the legal (moral) causation must then be found to justify a verdict of first degree murder.
 * The confinement that took place in this case is the underlying offence; exploitation of this confinement resulting in murder constitutes a first degree offence (s. 231(5) - Code).
 * "Substantial cause" requires an increased degree of moral culpability - degree of participation on the part of the accused.

The //Smithers// test of "beyond //de minimis//" is still valid and may be applied to all forms of homicide. It refers to "a contributing cause that is not trivial or insignificant" (Lambert J.A.).
 * Trial judges have discretion in choosing terminology with which to explain the standard in question. So that the standard is clear to a jury, this causation standard should be phrased, for example, as "significant contributing cause".

Case history demonstrates that within the context of causation of homicide, terminologies of "beyond de minimis", "significant contribution or "substantial cause" have been employed in essentially the same way. However, terminology of "substantial cause" should be used in order for the jury to understand clearly.

__B. Causation and the Facts of the Present Appeal__ //Does this case involve multiple causation in which a "beyond de minimis" standard must be used?// The lack of multiple causes in this case means that the jury need not be charged on the applicable standard of causation. Furthermore, it was not necessary to instruct the jury on the law of causation for homicide or to distinguish "substantial cause" from "more than a trivial cause".
 * Medical evidence suggests that multiple factors may have contributed to the victim's death. However, this does not necessarily to a **legal conclusion** of multiple operative causes of death; **the contribution of other persons or factors is of importance only if it serves to sever the link of the accused to the outcome.**
 * **This case does not involve multiple independent causes, or the operation of the thin-skull rule in a criminal context** (in light of the requirement of objective foreseeability of the extent of harm)**. Nor are any intervening causes are apparent. Nothing suggests interruption in the chain of causation.**