Whether a potential causal link between the defendant’s act and the harm proscribed by an offence was displaced by an act of another person can be a difficult factual issue. It can also be thought of as a moral issue, and it was so described by the trial judge whose instruction to the jury was the subject of appeal in R v Lozada, 2024 SCC 18, [12], [40].
As this case illustrates, there are various ways in which the attribution of this causation may be addressed.
The act of the “other person” may be called an intervening act, although to some people this might seem question-begging or conculsory. It seems that here, intervening means subsequent to the defendant’s act and before the occurrence of the proscribed harm. With that sorted out, it is possible to describe the subsequent act as intervening without presupposing that the necessary causal link has been broken.
Here there was an ugly fight between two groups, during which the victim was fatally stabbed by the “other person” who was convicted of murder. The two appellants had been charged with and convicted of manslaughter as principal parties, the Crown conceding that there was no evidence that they knew or expected that anyone in their group would use a weapon.
The fight can be called “ugly”, based on the majority’s description at [23]. In that context, was there (or, should there be held to have been) a causal link between the defendants’ assaults and the victim’s death?
The fundamental legal issue is whether, for each defendant, their conduct was “a significant contributing cause” of the victim’s death. [20] In Canadian jurisprudence, one of the subsidiary questions here is whether the so-called intervening act was reasonably (objectively) foreseeable. [22] It need not have been precisely foreseeable for there still to be a causal connection between the defendants’ acts and the death, as the inquiry is about the general nature of the intervening act rather than its specific kind. [24] The focus is on the contribution of each defendant to the victim’s death, and whether it was a significant cause of that death.
Causation is case-specific and fact-driven [23]. In group assaults, in the absence of an intervening act, the actions of all assailants can contribute significantly to all injuries sustained [28]. There is no single test or measure for determining whether a particular act has broken the chain of causation [29].
It would have been wrong for a juror to have seized on one of the considerations relevant to causation and ignored the others [22]. In determining whether a specific intervening act (here, the stabbing) was in its general nature reasonably foreseeable, the jury could ask itself whether the stabbing “naturally flowed” from each defendant’s conduct, whether the stabbing was “extraordinary and highly unusual”, whether it was “directly related” to each defendant’s unlawful act, and whether the stabbing was so overwhelming as to make the acts of each defendant “merely part of the background or setting” of the death, [20] whether the conduct of each defendant rendered the victim more vulnerable to the stabbing, and whether a defendant’s acts prevented assistance being given in defence of the victim. [21]
The dissenting justices, Rowe and Jamal JJ, considered that the trial judge’s instructions to the jury had left open the incorrect conclusion that because the continuation of the assaults on the victim and the resulting risk of non-trivial bodily harm to him was reasonably foreseeable the stabbing did not break the chain of causation between the defendants’ acts and the death. [37] The rendering of the victim more vulnerable did not address the question of the foreseeability of an assault which had the general nature of a stabbing [39], and the judge’s answer to the jury’s request for a definition of a break in the chain of causation did not correct the error [40]. The judge needed to address the foreseeability of an assault which had the general nature of a stabbing, and to leave to the jury whether its general nature was a continuation of the defendants’ assaults on the victim. [42]
Special significance may be attached to a judge’s answer to a question from the jury, and appellate judges may differ on whether, when read as a whole, the jury had received a correct direction on the law. [45]
Here, the Supreme Court of Canada split 3-2 (the majority being Karakatsanis, Martin and Moreau JJ), which makes this appeal one of those which could leave us with the uneasy feeling that, after all the appeals are over, a case may not have been conducted according to law. How can we really know?
And what about the reference to morality? This was unexplored in the appeal judgments. The judge's instruction seems to leave open the possibility that jurors might have said to themselves, "Well, we can't agree on what the judge meant about the law, except we do remember that morality is relevant. We agree that the defendants should be found guilty, so that's our verdict."
My thought is that moral considerations played their part in the development of the law, but now their role is spent. We have trials according to law, not according to people's individual moralities. However, it is impossible to prevent juries from deciding that, whatever the law may be, in the particular circumstances a conviction would be wrong. That is an important safeguard for individuals.
Unfortunately these matters of morality, which are far more interesting than the relatively straightforward law of causation, seem to have been overlooked in this case.
