Suppose that the accused points a gun at the victim and shoots several times. The victim dies immediately. In such contexts, the causal chain between the accused\u2019s conduct and the victim\u2019s death is clear. The accused\u2019s actions contributed to the victim\u2019s death in a physical, medical, or mechanistic sense\u2014the threshold question of factual causation (or cause in fact).[1]<\/a> That, however, is not the end of the causation inquiry in Canadian criminal law. There must also be legal causation (or cause in law), meaning that it is fair to ascribe the victim\u2019s death to the accused\u2019s conduct\u2014or, in other words, that the accused is morally responsible for the victim\u2019s death.[2]<\/a><\/p>\n In other cases, causation is less evident. A third party may attack the victim between the time of the accused\u2019s initial assault and the victim\u2019s death.[3]<\/a> Some natural cause or event may also play a role in the victim\u2019s death.[4]<\/a> Third parties may apply some form of negligent care that also contributes to the victim\u2019s death.[5]<\/a> The victim may die after refusing life-saving care for injuries inflicted by the accused.[6]<\/a> In all of these cases, some type of intervening event, cause, or act (a novus actus interveniens<\/em>) obscures causation.[7]<\/a><\/p>\n The causation inquiry is fundamental in the criminal law for a variety of reasons. Intervening acts raise concerns that touch on issues of fair labelling, culpability, and punishment.[8]<\/a> These concerns are at the forefront when an accused risks being stigmatized for causing an injury or death for which they are not uniquely responsible.[9]<\/a> Despite the persistence and importance of these issues, courts and scholars correctly point out that causation is notoriously complex and difficult to articulate.[10]<\/a> It involves the interplay between metaphysical, scientific, moral, and legal considerations.[11]<\/a><\/p>\n This article aims to advance a more cogent and clear conception of the causation requirement in Canadian criminal law. Its principal arguments and structure are as follows.<\/p>\n Part I describes the distinction between factual and legal causation as articulated by the Supreme Court of Canada. Building on Jeremy Butt\u2019s recent scholarship, Part II argues that judges should use a uniform formulation of the factual causation standard: significant contributing cause.[12]<\/a> It also shows why the but-for test is unhelpful except in the easiest of cases.[13]<\/a> Part II provides the groundwork for this article\u2019s core argument about the role of factual causation\u2014ascribing negative changes in the world to individuals. This Part demonstrates why the significant contributing cause test helps ensure a strong ascriptive link between the defendant\u2019s conduct and its role in worsening others\u2019 plights.<\/p>\n Part III then sets out a plausible account of legal causation\u2019s function as part of a broader causation analysis. It first shows how Canadian criminal law tends to assess an intervening act\u2019s reasonable foreseeability rather than its independence, and how the latter test is subsumed by the former. It then argues that the doctrine of reasonable foreseeability is distinct from the question of foreseeability of bodily harm when assessing moral fault. The doctrine remains useful as an analytical tool to evaluate legal causation, serving to limit criminal liability where unforeseeable contributing causes fall outside the ambit of risk associated with the accused\u2019s initial conduct.<\/p>\n Part IV then challenges the Supreme Court of Canada\u2019s account of the role of factual and legal causation in the criminal law (namely, that they aim to prevent the conviction of morally innocent persons).[14]<\/a> This Part shows why legal causation can concede the moral culpability of individuals who significantly contribute to the victim\u2019s death, yet withhold blame due to concerns that are rooted in principles of ascription and fair labelling\u2014rationales that are distinct from moral innocence.[15]<\/a> Ultimately, this article explains why, like other legal doctrines, causation touches on one of the most crucial issues in the criminal law: Who<\/em> is responsible for what<\/em>?<\/p>\n Causation is a necessary component of the actus reus for result crimes,[16]<\/a> meaning crimes that are \u201cin part defined by certain consequences which follow an act.\u201d[17]<\/a> Those results or consequences include death (e.g., for the crimes of manslaughter, criminal negligence causing death, or murder) or bodily harm (e.g., for the offences of assault causing bodily harm or criminal negligence causing bodily harm).[18]<\/a> The causation component of the actus reus for result crimes is divided into a two-step inquiry. First, there must be factual causation between the accused\u2019s conduct and the consequence.[19]<\/a> If the first step is satisfied, the second step examines legal causation\u2014whether the accused is morally responsible for the victim\u2019s death.[20]<\/a><\/p>\n The Supreme Court of Canada explains that factual causation (or cause in fact) implies the accused\u2019s \u201cmedical, mechanical, or physical\u201d contribution to the victim\u2019s injury or death.<\/em>[21]<\/a> Cause in fact is a necessary precondition that ties the accused\u2019s conduct to the consequence.[22]<\/a> While medical expert reports and testimony can assist in establishing factual causation,[23]<\/a> the trier of fact ultimately determines whether cause in fact is established and is not restricted to a medical expert\u2019s conclusion on that point.[24]<\/a> In clear cases, the cause in fact inquiry is often framed in counterfactual terms: the victim would not have died or suffered gross bodily harm but for<\/em> the accused\u2019s contribution to that result.[25]<\/a><\/p>\n The Supreme Court of Canada initially explored the requisite degree of factual causation in Smithers<\/em>.[26]<\/a> Writing on behalf of the unanimous Court, Justice Dickson (as he then was) concluded that the accused\u2019s conduct must contribute to the victim\u2019s injury or death \u201coutside the de minimis <\/em>range.\u201d[27]<\/a> Consistent with the causation test in other countries, it is not necessary that the accused\u2019s act be the sole cause of the victim\u2019s injury or death.[28]<\/a> The Court also affirmed the longstanding \u201cthin skull principle\u201d applicable in civil and criminal law.[29]<\/a> According to that principle, causation subsists where the victim had a pre-existing medical condition (e.g., hemophilia, a thin skull, or low bone density) that increased the likelihood of death.[30]<\/a> The accused thus takes the victim as they find them.[31]<\/a><\/p>\n The causation threshold established in Smithers <\/em>was revisited in R. v. Nette<\/em>. The Court affirmed that in assessing causation in the criminal law, the concept of contributory negligence does not apply.[32]<\/a> The majority of the Court also reformulated the terminology for factual causation, holding that the accused\u2019s conduct must be a \u201csignificant contributing cause\u201d of the victim\u2019s injury or death.[33]<\/a> In the Court\u2019s view, it was simpler for triers of fact to understand causation described in positive terms (e.g., a significant contribution) as opposed to in negative terms (e.g., a not insignificant contribution).[34]<\/a> The majority held that trial judges nonetheless can instruct juries using either formulation\u2014an approach that is criticized below in Part\u00a0II.[35]<\/a><\/p>\n Legal causation (or cause in law) concerns the legitimacy of holding an accused morally responsible for a given result.[36]<\/a> In contexts where the defendant contributes significantly to the victim\u2019s death and there is no intervening act or event, legal causation is relatively simple. Cause in law is more difficult to ascertain when another event or act also contributes to the victim\u2019s death. Such cases raise concerns about whether it is fair to blame the accused for that result.[37]<\/a> The second prong of the causation analysis therefore helps ensure that the victim\u2019s injury or death is morally attributable to the actor\u2019s role in producing those consequences.[38]<\/a><\/p>\n Both the Criminal Code<\/em> and the common law provide rules governing legal causation.[39]<\/a> Certain Criminal Code <\/em>provisions maintain cause in law despite the acts of a third party or the victim that play some role in the latter\u2019s death. Section 224 establishes that if the defendant injures the victim, causation subsists despite the victim\u2019s failure to resort to proper means that would have prevented their death.[40]<\/a> Notably, legal causation remains intact where the victim refuses life-saving treatment, for either religious or other reasons.[41]<\/a> Section 225 affirms legal causation where the victim dies as a result of good faith but inappropriately applied medical care.[42]<\/a><\/p>\n The common law rules from the Maybin <\/em>decision set out two analytical tools that assist courts in determining whether an intervening act undermines cause in law.[43]<\/a> The first analytical tool assesses whether the general nature of the intervening act and its accompanying risk of harm were reasonably foreseeable at the time of the accused\u2019s initial conduct (\u201creasonably foreseeable intervening acts\u201d).[44]<\/a> Where that threshold is met, legal causation is generally maintained.[45]<\/a> The intervening act\u2019s reasonable foreseeability famously justified maintaining causation in the Supreme Court of South Australia\u2019s decision Hallett<\/em>.[46]<\/a> In that case, the accused attacked the victim and left him unconscious on a beach. The tide rose and the victim drowned. The Court held that the rising tide was reasonably foreseeable, and the accused was convicted of manslaughter.[47]<\/a><\/p>\n The same test justified maintaining legal causation in the Ontario Court of Appeal decision R. v. Shilon<\/em>.[48]<\/a> In that case, an individual stole a motorcycle. A high-speed car chase ensued, involving the stolen motorcycle\u2019s owner (Trakas) and the accused (Shilon), who participated in the motorcycle theft but escaped in another vehicle. While chasing Shilon, Trakas\u2019s car struck and killed a police officer who was laying down a stop-stick. Both Trakas and Shilon were accused of criminal negligence causing death. At issue was whether Trakas\u2019s conduct was an intervening act that undermined Shilon\u2019s responsibility for causing the officer\u2019s demise.[49]<\/a> The Court upheld Shilon\u2019s conviction, concluding that Trakas\u2019s actions and the risk of harm were reasonably foreseeable consequences of Shilon\u2019s conduct.[50]<\/a><\/p>\n The second analytical tool assesses whether the intervening act was independent of the accused\u2019s conduct and deemed to be the sole legal cause of the victim\u2019s death (\u201cindependent intervening acts\u201d).[51]<\/a> Such acts are generally associated with voluntary conduct of a third party or of the victim that also played some role in the latter\u2019s injury or death.[52]<\/a> Independent acts are said to create new causal chains and sever the accused\u2019s legal responsibility for a given result.[53]<\/a><\/p>\n Independent intervening acts imply that the accused\u2019s conduct only set the scene for some other act to cause the victim\u2019s death and therefore was not instrumental in causing it.[54]<\/a> Where the accused\u2019s actions are merely part of the background, history, or context for the intervening act, the accused is absolved of blame for having caused the relevant result.[55]<\/a> Where the intervening act is a direct or immediate response to the accused\u2019s actions, the accused is still held responsible in law for that result.[56]<\/a><\/p>\n The Supreme Court of Canada accepts that judges possess discretion with respect to the formulation of the factual causation standard.[57]<\/a> This Part discusses the problems associated with varying terminology of that standard. It argues that the beyond de minimis <\/em>test, but-for test, and significant contributing cause test are different and should not be used interchangeably. It then provides reasons why only the \u201csignificant contributing cause\u201d formulation should be used in Canadian criminal law.<\/p>\n In the Supreme Court of Canada decision R. v. Nette<\/em>, Justice Arbour wrote that trial judges are afforded significant latitude in describing the factual causation test. She explained:<\/p>\n As I discussed in\u00a0Cribbin<\/em>, while different terminology has been used to explain the applicable standard in Canada, Australia and England, whether the terminology used is \u201cbeyond\u00a0de minimis<\/em>\u201d, \u201csignificant contribution\u201d or \u201csubstantial cause\u201d, the standard of causation which this terminology seeks to articulate, within the context of causation in homicide, is essentially the same.[58]<\/a><\/p>\n Some scholars disagree that both formulations for cause in fact\u2014beyond de minimis <\/em>and significant contributing cause\u2014are interchangeable. Stanley Yeo posits that a not insignificant contribution does not equate to a significant contribution.[59]<\/a> He remarks: \u201c[W]hen Mary says that she does not dislike John, she means, at most, that she is impartial towards him rather than that she likes him.\u201d[60]<\/a> Four out of the nine Supreme Court Justices in Nette <\/em>shared a similar view. They explained: \u201cTo claim that something not unimportant is important would be a sophism. Likewise, to consider things that are not dissimilar to be similar would amount to an erroneous interpretation.\u201d[61]<\/a> Hugues Parent also rejects the equivalency between both standards. In his view, the significant contributing cause standard in Nette <\/em>is more demanding than the beyond the de minimis <\/em>range standard in Smithers<\/em>.[62]<\/a><\/p>\n In light of the plausible difference between both formulations for cause in fact, scholars argue against allowing judges to employ different terminology interchangeably. Many criticize the continued use of the beyond the de minimis <\/em>threshold on the grounds that virtually any contribution by the accused will satisfy the test\u2019s demands.[63]<\/a> In support of that contention, Jill Presser notes:<\/p>\n [V]irtually all conditions that are precipitating factors of a consequence may be said to be causes. The de minimis<\/em> threshold is set so low that there is no need to stipulate the requirement of a direct causal relationship between the unlawful act and the proscribed harm.[64]<\/a><\/p>\n David Tanovich and James Lockyer agree with that position. In line with certain judicial decisions, they characterize the Smithers<\/em> causation standard as \u201csweeping.\u201d[65]<\/a><\/p>\n Anne-Marie Boisvert, for her part, contends that one better understands the lax standard set out in Smithers <\/em>by also considering the range of circumstances that fail to break the causal chain.[66]<\/a> She points out that the beyond de minimis <\/em>test not only requires little contribution from the accused to meet that threshold, but dismisses an array (or combination) of relevant contributing circumstances as irrelevant.[67]<\/a> Those circumstances can include the victim\u2019s pre-existing medical condition, their refusal to receive life-saving care, negligent medical treatment provided by others, and contributory negligence.[68]<\/a><\/p>\n For similar reasons, the Law Reform Commission of Canada contended that the but-for and beyond de minimis <\/em>standards could produce irrational conclusions\u2013\u2013for example, that marriage is a cause of divorce.[69]<\/a> The Commission ultimately argued in favour of a causation test requiring the accused to contribute significantly to the result.[70]<\/a><\/p>\n Don Stuart posits that it is plausible that the adoption of the beyond de minimis <\/em>standard can lead to convictions where the significant contributing cause standard can result in acquittals.[71]<\/a> He offers the example of the Ontario Court of Appeal decision R. v. Shanks<\/em>.[72]<\/a> During a brief altercation, the defendant threw the elderly victim to the ground. The victim, who suffered from a range of pre-existing medical conditions, died later that evening from a heart attack after coronary plaque dislodged and obstructed one of his arteries. Expert evidence revealed that there was an 80\u201390 per cent chance that the heart attack would have occurred even without the assault. The trial judge still convicted the accused of manslaughter, concluding that he contributed to the victim\u2019s death beyond the de minimis <\/em>range.[73]<\/a> The Ontario Court of Appeal upheld the conviction. Don Stuart suggests that the trier of fact may have acquitted the defendant had the significant contributing cause standard been employed.[74]<\/a><\/p>\n There are certain advantages to uniformly employing the significant contributing cause test for factual causation, rather than allowing judges to use different terminology, including \u201cbeyond de minimis<\/em>.\u201d First, the significant contributing cause threshold may promote fair labelling and proportionate stigmatization, especially in cases where the defendant\u2019s contribution to the victim\u2019s death is questionable.[75]<\/a> For some result crimes other than murder\u2014such as manslaughter or criminal negligence\u2014the defendant risks being stigmatized for causing another\u2019s death.[76]<\/a> If convicted of those offences, defendants can be sentenced to life imprisonment.[77]<\/a> The dangers of unfair attribution become particularly prominent in contexts where pre-existing medical conditions or vulnerabilities significantly increase the chance of victims\u2019 suffering injury or death from relatively banal acts. The greater the victim\u2019s vulnerability, the easier it is for the accused\u2019s act to injure the victim or cause their death. Given those risks, the significant contribution test may better protect against unfair attribution of certain results to the accused.<\/p>\n Second, a more demanding causation standard is consistent with other principles that favour fair blaming and punishment practices, such as the principle of lenity (or strict construction) applicable to the statutory interpretation of criminal laws.[78]<\/a> Strict construction governs the circumstances in which ambiguous criminal law statutes are interpreted in the defendant\u2019s favour.[79]<\/a> Lenity is not a freestanding principle that automatically applies to penal statutes.[80]<\/a> Rather, as Glanville Williams explains, it is employed where a penal statute gives rise to more than one reasonable interpretation that is nonetheless consistent with the legislator\u2019s objective.[81]<\/a> Lenity aims to protect individuals against disproportionate attributions of blame, stigma, or punishment in light of the defendant\u2019s actual culpability.[82]<\/a> Admittedly, the causation standard is not a statutory creation or an ambiguous penal statute; it is a common law creation. Yet ambiguity about the appropriate causation standard raises the same concern that underpins the lenity principle: fair labelling. Supreme Court judges\u2019 disagreement in Nette <\/em>as to whether non-insignificance equates to significance exemplifies the type of ambiguity that militates in favour of lenity in other contexts.<\/p>\n Third, the importance of predictability and uniformity in the criminal law supports the adoption of one single formulation for factual causation. If nearly half the Supreme Court judges in Nette <\/em>perceived a meaningful difference between different formulations of the causation test, it is conceivable that other judges or jury members do as well.[83]<\/a><\/p>\n Fourth, the sole use of the significant contributing cause test would standardize the factual causation threshold in cases with and without intervening acts. In Nette<\/em>, the Supreme Court of Canada held that judges have discretion to determine the formulation of the causation standard.[84]<\/a> Yet several years later in Maybin<\/em>, the Court was more explicit about the formulation of the causation standard in the presence of intervening acts: it was significant contributing cause.[85]<\/a> Canadian courts as well as the England and Wales Court of Appeal (citing Maybin<\/em> and prior English cases) affirmed that approach in homicide cases, highlighting the need to ensure that the accused\u2019s contribution to the victim\u2019s death is significant.[86]<\/a> Where causation issues arise, the core question is always the same: whether the accused contributed significantly to the victim\u2019s death in fact and in law.[87]<\/a> This remains the fundamental question irrespective of some intervening act, where courts militate strongly in favour of the sole formulation of significant contributing cause. For that reason, the causation formulation applicable in contexts of novus actus interveniens <\/em>should also be used in contexts where there is no intervening act.<\/p>\n Factual causation generally involves the counterfactual but-for inquiry: but for <\/em>the accused\u2019s act, the victim would not be injured or deceased.[88]<\/a> As reiterated on numerous occasions, the accused\u2019s contribution need not be the predominant, most significant, or most direct cause of death.[89]<\/a> In many contexts, but-for causation is unhelpful and inevitably requires an assessment of significant contributing cause\u2013\u2013a factor that further militates in favour of employing one formulation of the factual causation threshold.[90]<\/a><\/p>\n Ernest Weinrib explains that the but-for test is a speculative process that considers \u201cwhat did not happen or rather what would have happened if what had happened had not happened.\u201d[91]<\/a> As is the case in tort law jurisprudence, certain scenarios render the but-for test futile.<\/em>[92]<\/a> The test is ill-suited where multiple defendants contribute to some extent to the victim\u2019s death and it is unclear what would have transpired but for<\/em> a particular defendant\u2019s involvement.[93]<\/a> Furthermore, the but-for test is unhelpful where death would have ensued even without the accused\u2019s act, such as in cases where the accused prematurely kills a victim that is on the verge of death.[94]<\/a> The test is also inadequate in the presence of intervening acts, where courts must engage in a form of contrastive causation that necessarily assesses the significance of the accused\u2019s contribution to the victim\u2019s death.[95]<\/a><\/p>\n Michael Moore argues that but-for causation can be problematic because it does not generally consider the intensity of one\u2019s contribution to a result.[96]<\/a> Consequently, in hard cases, courts must necessarily depart from but-for causation and examine whether the accused contributed significantly to the victim\u2019s death\u2014the precise approach adopted by the Supreme Court of Canada in Nette <\/em>and Maybin<\/em>.[97]<\/a> In a similar vein, Butt points out that courts convict defendants where they contribute significantly to the victim\u2019s death despite not being the but-for cause of that result. This is notably the case where multiple co-principals attack a victim, yet each attack is sufficient to cause death.[98]<\/a><\/p>\n Similarly, courts assess the significance of the defendant\u2019s contribution to a result in contexts where several co-principals mutually engage in some conduct that creates serious risks of harm and results in death. For instance, in R. v. Menezes<\/em>, the defendant was street racing against another vehicle, driven by Meuszynski.[99]<\/a> At some point, Meuszynski\u2019s car left the roadway and collided with a utility pole. He died in the accident. At issue was whether Menezes could be convicted of criminal negligence causing death for having co-participated in the street race.[100]<\/a> Justice Hill Jr. declared that the defendant could not exculpate himself on the basis of the victim\u2019s contributory negligence,[101]<\/a> observing that factual causation could be satisfied even though the defendant did not physically collide with the deceased\u2019s vehicle.[102]<\/a> The judge applied the significant contributing cause test, interrogating whether the defendant\u2019s contribution to the death was sufficiently material as opposed to collateral.[103]<\/a> Justice Hill Jr. reasoned that co-participants in a street race both assume responsibility for the danger created by this jointly maintained activity, including for the death of one of the drivers\u2014an approach adopted by other courts in similar cases.[104]<\/a> Likewise, in contexts involving shootouts between co-principals, courts have held that one co-principal factually contributes to a victim\u2019s death resulting from the other co-principal\u2019s gunshot.[105]<\/a> In these types of cases, courts evaluate the accused\u2019s factual involvement in bringing about a consequence by looking at its intensity\u2014whether the contribution is so significant that it cannot logically be divorced from the consequence.<\/p>\n These types of concerns lead some scholars to observe that the but-for test is most useful only in the easiest cases, where it is least needed.[106]<\/a> Recognizing that harder cases inevitably require a consideration of the extent of the accused\u2019s contribution to a result, Weinrib suggests that courts could avoid using but-for causation in many cases.[107]<\/a> He remarks: \u201c[I]t may be best to acknowledge that we can come no closer to an adequate solution of the cause in fact problem than to confront it directly by asking simply whether the defendant\u2019s conduct was a substantial factor in producing the injury\u201d[108]<\/a>\u2014a suggestion that acknowledges the necessity of examining significant contributing cause in hard cases. Butt contends that such a charge would be more consistent with how juries are actually instructed when evaluating causation: to ask themselves, \u201cDid the accused contribute significantly to the victim\u2019s death?\u201d[109]<\/a><\/p>\n In complicated cases with either multiple contributing causes or intervening acts, courts routinely hold that the ultimate causation question is whether the accused contributed significantly to the victim\u2019s death\u2014an inquiry that places greater importance on the requisite strength of the accused\u2019s contribution to a result as opposed to a counterfactual assessment about their involvement.[110]<\/a><\/p>\n Conceptions of legal causation in Canadian criminal law similarly require rethinking. The doctrine of independent intervening acts applies only in restricted circumstances and has largely been overshadowed by the doctrine of reasonably foreseeable intervening acts. The latter remains useful and is distinct from the foreseeability inquiry under mens rea; it serves to limit criminal liability where unforeseeable contributing causes fall outside the ambit of risk associated with the accused\u2019s initial conduct.<\/p>\n The Supreme Court of Canada has alluded to different decisions as examples of judges employing the doctrine of independent intervening acts. In Maybin<\/em>, the Court cited Shilon <\/em>(the car-chase case) and Hallett <\/em>(the rising tide case) as examples where courts maintained legal causation because the intervening act was not independent.[111]<\/a> However, those decisions are unhelpful in illuminating the doctrine of independent intervening acts because they were resolved on the basis of the intervening act\u2019s reasonable foreseeability.<\/p>\n Due to a combination of factors, the independent intervening act doctrine has been interpreted restrictively by Canadian courts compared to the doctrine of reasonably foreseeable intervening acts. Those same factors also account for why the doctrine of reasonably foreseeable intervening acts has largely overshadowed the doctrine of independent intervening acts.<\/p>\n First, Canadian courts tend to recognize that the victim\u2019s own voluntary, deliberate, and informed conduct does not constitute an independent intervening act that breaks legal causation.[112]<\/a> This is most notably the case where the victim dies after consuming drugs or some other harmful substance that the accused provided. In the Manitoba Court of Appeal decision R. v. Haas (CJ)<\/em>, the accused gave the victim morphine pills.[113]<\/a> She consumed the pills and died of a drug overdose. Haas was convicted of unlawful act manslaughter. The Court of Appeal upheld the conviction. The judges concluded that the accused\u2019s conduct was an instrumental and significant cause of death, notwithstanding the victim\u2019s voluntary decision to consume the drugs.[114]<\/a> Other Canadian courts have arrived at the same conclusion in similar cases.[115]<\/a><\/p>\n The doctrine of independent intervening acts plays a greater role in England and other jurisdictions, where courts hold that the victim\u2019s voluntary, informed, and deliberate conduct can sever causation.[116]<\/a> In the UK House of Lords decision R. v. Kennedy<\/em>, the defendant was a drug dealer who provided the victim with an opioid-filled syringe.[117]<\/a> The victim injected the substance into his arm and died of a drug overdose. The defendant was convicted at trial of manslaughter, and the conviction was upheld by the Court of Appeal. The House of Lords substituted an acquittal, concluding that the victim\u2019s autonomous act broke the causal chain.[118]<\/a> By rejecting Kennedy<\/em>\u2019s application in Canada, Canadian courts have largely restricted the use of the independent intervening acts doctrine.[119]<\/a><\/p>\n Second, certain Criminal Code<\/em> provisions and common law rules restrict the application of independent intervening acts as an analytical tool. The victim\u2019s refusal to receive life-saving care does not constitute an independent intervening act[120]<\/a>\u2014and neither does a third party\u2019s good faith, although improper, medical treatment applied to a victim injured by the accused.[121]<\/a><\/p>\n Third, the criminal law\u2019s rejection of contributory negligence and apportionment of liability also confines the doctrine of independent intervening acts.[122]<\/a> This analytical tool serves to absolve the accused of responsibility only where a third party\u2019s conduct or the victim\u2019s own act is deemed to be the sole legal cause of the latter\u2019s death.[123]<\/a><\/p>\n In Canadian criminal law, the doctrine of independent acts is generally subsumed by the test for reasonably foreseeable intervening acts. When courts inquire whether an independent act severs causation because its occurrence is extraordinary, they are inquiring whether the act is reasonably foreseeable.[124]<\/a> The latter analytical tool will generally do the necessary legwork. The same is true where the accused\u2019s conduct sets the scene for a third party\u2019s assault, making the latter\u2019s act the exclusive legal cause of the victim\u2019s death.[125]<\/a> In such contexts, the criminal law withholds the defendant\u2019s liability for the victim\u2019s death due to concerns about fair attribution.<\/p>\n Like in ordinary life, the criminal law recognizes that defendants exert meaningful control over their own conduct and its potential risks. An accused tends to exert less control, however, over others\u2019 autonomous acts and the sphere of risks that others create.[126]<\/a> When the general nature of others\u2019 acts and their inherent risks are unforeseeable and too removed from the defendant\u2019s autonomous conduct, those acts are deemed to be independent. In such cases, the harm that claims the victim\u2019s life falls within an unanticipated sphere of risk that is more properly attributable to someone other than the accused. Here too, an analysis of the act\u2019s independence collapses into an inquiry into its reasonable foreseeability. In other words, when assessing the general nature of the novus actus<\/em>, courts evaluate whether something about the intervening act\u2014its likelihood, type, scope, temporal remoteness, or surprising nature\u2014undermines the intervening act\u2019s reasonable foreseeability.<\/p>\n The doctrine of reasonably foreseeable intervening acts plays a more prominent role in assessing legal causation within Canadian criminal law. This section argues that the doctrine\u2019s purpose is distinct from the reasonable foreseeability inquiry as part of mens rea. <\/em>It shows why an intervening act\u2019s reasonable foreseeability acts as a heuristic (or rule of thumb) that is used to assess whether an ambit of risk can be fairly ascribed to the accused.<\/p>\n In Maybin<\/em>, the Supreme Court of Canada observed that the analytical tool of reasonably foreseeable intervening acts closely aligns with the mens rea for manslaughter.[127]<\/a> Yet to distinguish causation from the moral fault requirement for that crime, the Court held that the general nature of the intervening act and its accompanying risk of harm must be reasonably foreseeable at the time of the accused\u2019s unlawful conduct.[128]<\/a> As Justice Karakatsanis explained, causation generally remains intact where the intervening act and accompanying harm reasonably flow from the accused\u2019s conduct.[129]<\/a><\/p>\n Butt argues that it is redundant to analyze the reasonable foreseeability of intervening acts because mens rea already requires proof of objective foresight of bodily harm.[130]<\/a> In his view, the causation analysis should remove moral fault considerations.[131]<\/a> Rather, courts should resort to the independent act tool and examine whether the intervening act is so proximally remote that it overshadows the accused\u2019s behaviour as the sole cause in law of the victim\u2019s death.[132]<\/a> Certain courts share a somewhat similar view, observing that reasonable foreseeability is generally associated with moral fault and should be kept separate from causation and actus reus.[133]<\/a><\/p>\n The doctrine of reasonably foreseeable intervening acts, however, plays a role that is distinct from foreseeability with respect to mens rea. As explained further below, it acts as a safety valve to prevent unfair labelling. The doctrine of reasonably foreseeable intervening acts assesses the relationship between the accused\u2019s wrongful conduct and the victim\u2019s death, even where the accused possesses sufficient moral fault.[134]<\/a> The doctrine of reasonably foreseeable intervening acts provides a legal heuristic for evaluating whether a contributing cause fell within the ambit of risk inherent to the accused\u2019s wrongful and dangerous behaviour.[135]<\/a> The term \u201cambit of risk\u201d does not merely allude to the reasonable foreseeability of the intensity<\/em> of certain risks or the possibility of some result materializing. Rather, it also encompasses the origin <\/em>of certain risks and the kind <\/em>of risks that reasonably flow from one\u2019s conduct in a given circumstance.<\/p>\n Where causation is a significant issue, most cases turn on the fact that the victim suffered greater harm because of an intervening act than they would have experienced without its occurrence. For instance, an unconscious victim left face down on the pavement is not subject to a risk of drowning. An unconscious victim left face down on a beach and submerged in water (like in Hallett<\/em>) is<\/em> subject to that added risk. In a similar vein, one-on-one fights in an isolated setting do not create additional risks that others will become involved and unfairly gang up on the victim. As was the case in Maybin<\/em>, barfights do create that added risk. Intervening acts matter because the additional risks that those acts generate are often the difference between life and death. The scope of risk is therefore greater where the accused\u2019s unlawful conduct exposes the victim to additional contributory sources of harm that otherwise would not arise.<\/p>\n Legal causation assesses whether additional contributory causes fall within the range of risks associated with the accused\u2019s conduct and are therefore fairly ascribable to them.[136]<\/a> In some contexts, unchosen and completely unforeseeable intervening causes play the predominant role in the victim\u2019s death. Those contributory causes fall outside of the ambit of risk attributable to the accused. Such cases create a logical gap between the sphere of risk created by the accused\u2019s behaviour and some tragic result.<\/p>\n Where such logical gaps are formed, the doctrine of reasonably foreseeable intervening acts withholds blaming the accused for the victim\u2019s death due to fairness concerns related to both culpability and punishment. When the intervening act was unchosen, unforeseeable, and outside the scope of risks that flow from the accused\u2019s conduct, it is difficult to justify punishing them for causing<\/em> the victim\u2019s death on the basis of desert or deterrence principles.[137]<\/a> The upshot is that it is fairer to blame and punish defendants for reasonably foreseeable contributing causes that fall within the range of risks that they create. Legal causation recognizes that although defendants lack control over the consequences of creating a certain sphere of risk, they maintain greater control over their initial<\/em> creation.<\/p>\n Legal causation\u2014and the doctrine of reasonably foreseeable intervening acts\u2014thus corrects for potential unfair blaming practices in the criminal law.[138]<\/a> For instance, an accused\u2019s dangerous and unlawful act might create a reasonably foreseeable risk of bodily harm. That very act may cause minor injuries to the victim. Suppose the victim decides to go to the hospital by ambulance as a precautionary measure. The ambulance is struck by a reckless driver and the victim dies. Causation ensures that the accused is not blamed for causing the victim\u2019s death despite the fact that their act could have led to the same result.[139]<\/a> Legal causation recognizes that an unforeseeable car accident caused by a reckless driver is a contributory cause that falls outside the realm of risk created by the accused\u2019s initial assault\u2014the doctrine excludes the accused\u2019s conduct as an instrumentally salient cause of death.<\/p>\n In this way, legal causation acts as an additional fairness constraint that promotes fair labelling, especially in contexts where the accused satisfies a low-level mens rea requirement.[140]<\/a> Cause in law blocks tempting, but inappropriate, desert-based inferential reasoning where the accused possessed sufficiently reprehensible mens rea. As an ascriptive constraint, it counteracts the enticement to attribute bad outcomes to the accused based on intuitions about what they deserve given their moral fault. Legal causation excludes ascribing certain results to the accused where their culpable and wrongful acts are simply a condition but not an instrumental and salient legal cause of the victim\u2019s death.[141]<\/a> The doctrine of reasonably foreseeable intervening acts affirms that certain unforeseeable contributing causes are not fairly ascribable to the accused because they fall outside the sphere of risk created by their conduct.<\/p>\n The previous Parts highlighted certain limitations to the Supreme Court of Canada\u2019s conceptions of factual causation, legal causation, and intervening acts. Building on Andrew Simester\u2019s work, this Part provides an account of causation that is rooted primarily in the notions of attribution and fair labelling, as opposed to moral innocence.[142]<\/a> It shows how attribution is concerned with connecting negative changes in the world and the creation of certain risks to some individuals at the exclusion of others.[143]<\/a> Having set out that account, it then challenges the Supreme Court of Canada\u2019s rationale for causation as necessary to prevent the conviction of morally innocent persons.<\/p>\n In Nette<\/em>, Justice Arbour observed that factual causation \u201cis concerned with an inquiry about how the victim came to his or her death, in a medical, mechanical, or physical sense, and with the contribution of the accused to that result.\u201d[144]<\/a> Later, in Maybin<\/em>, the Court added that factual causation is inclusive in scope\u2014it determines who can be deemed to have factually contributed to some result.[145]<\/a><\/p>\n One shortfall of that view is that it cannot provide an account of causation for omissions, whose hallmark is the defendant\u2019s inaction or non-intervention in the face of a duty to act.[146]<\/a> The lack of a physical act implies that the defendant does not, in any positive sense, medically, physically, or mechanically contribute to the victim\u2019s death.[147]<\/a> Yet the criminal law still recognizes causal relations between a defendant\u2019s inaction and the victim\u2019s worsened plight, such as a parent\u2019s failure to feed their child, resulting in the child\u2019s injury or death.[148]<\/a> Scholars such as George Fletcher, Arthur Leavens, and John Kleinig argue that factual causation is grounded in the existence of some pre-existing duty that creates a form of reliance between the defendant and the victim, making the accused responsible <\/em>in fact for the victim\u2019s plight.[149]<\/a> The nature of the relationship between accused and victim is at the root of causation.[150]<\/a> The notion of duties to act recognizes that defendants are responsible both for actions that intrude upon another\u2019s interests as well as for inactions that deprive others of their interests.[151]<\/a> Factual causation therefore must be concerned with something more than physical, medical, or mechanical contributions to results.<\/p>\n One way of addressing that shortfall is by thinking about factual causation in terms of ascription<\/em>\u2014the practice of attributing changes that take place in the world to particular individuals. Factual causation is largely concerned with tying events or states of affairs to individuals, be it through their actions or inactions. It links an individual to the changes that they effectuate in the world and that are properly attributable to them.[152]<\/a> In the realm of criminal law, defendants\u2019 conduct characteristically effectuates changes that worsen the victim\u2019s plight or creates unreasonable risks to others.[153]<\/a> As a heuristic used to draw inferences between conduct and outcomes, factual causation assesses whether some individual\u2019s conduct is responsible<\/em> for causing states of affairs to change for the worse.[154]<\/a> Legal causation serves to ascribe prima facie moral responsibility in the form of a connection between the actor\u2019s conduct and negative changes, to the exclusion of other persons<\/em>.[155]<\/a> For that reason, Simester observes that factual causation acts as a form of \u201cboundary rule.\u201d[156]<\/a><\/p>\n The more significant the accused\u2019s contribution to some state of affairs, the greater the connection (or the stronger the inference) between their conduct and negative changes that occur in the world. Factual causation thus requires the state to provide a public account of why that individual is being singled out as a subject of potential criminal liability. The cause in fact inquiry answers one of the most basic questions at the heart of criminal liability: Why me<\/em>?<\/p>\n In Canadian law, courts justify legal causation primarily on the basis that it prevents the conviction of morally innocent persons. That rationale was first advanced in the Ontario Court of Appeal decision R. v. Cribbin <\/em>and was later affirmed in Nette <\/em>and Maybin<\/em>.[157]<\/a> In Cribbin<\/em>, Justice Arbour explained:<\/p>\n I refer to the link between causation and the fault element in crime, represented in homicide by foresight of death or bodily harm, whether subjective or objective, because it serves to confirm that the law of causation must be considered to be a principle of fundamental justice akin to the doctrine of mens rea<\/em>. The principle of fundamental justice which is at stake in the jurisprudence dealing with the fault element in crime is the rule that the morally innocent should not be punished.[158]<\/a><\/p>\n Justice Arbour reiterated that position in Nette<\/em>, where she observed:<\/p>\n Legal causation, which is also referred to as imputable causation, is concerned with the question of whether the accused person should be held responsible in law for the death that occurred. It is informed by legal considerations such as the wording of the section creating the offence and principles of interpretation. These legal considerations, in turn, reflect fundamental principles of criminal justice such as the principle that the morally innocent should not be punished.[159]<\/a><\/p>\n The Supreme Court of Canada unanimously endorsed that statement in Maybin<\/em>, observing that \u201c[a]ny assessment of legal causation should maintain focus on whether the accused should be held legally responsible for the consequences of his actions, or whether holding the accused responsible for the death would amount to punishing a moral innocent.\u201d[160]<\/a> The argument that legal causation is necessarily justified by the need to prevent the conviction of morally innocent persons, however, is problematic for several reasons.<\/p>\n First, it ignores contexts where courts concede that the accused contributed to the victim\u2019s death but withhold blame for that result nonetheless. Consider the following hypothetical.[161]<\/a> Suppose that the accused intentionally causes low-level, objectively foreseeable bodily harm to the victim.[162]<\/a> The victim is subsequently transported to a hospital for precautionary treatment. The ambulance is involved in a car accident and the victim dies. The accused\u2019s dangerous and unlawful act was a significant factual contribution to the victim\u2019s eventual death, meaning that the accused shares some<\/em> responsibility for its occurrence. Yet because the accused only caused low-level bodily harm and the range of risk created by their conduct did not encompass a car accident, it is unjust to blame them for that death.[163]<\/a><\/p>\n In such cases, the law does not construe the accused as morally innocent, especially if they intended to cause bodily harm and succeeded.[164]<\/a> Rather, it concedes the accused\u2019s culpable contribution to the victim\u2019s death but withholds blame for reasons more closely tied to the principles of attribution and fair labelling.[165]<\/a> As described by Antony Duff, the core problem with blaming the accused for death in such contexts is not that the accused is innocent, but that they are \u201cnot that <\/em>guilty.\u201d[166]<\/a> Fair labelling is violated where the accused is punished for something other than what they<\/em> did or caused, because they are wrongly blamed for conduct or consequences that are not fairly attributable to them.[167]<\/a> Legal causation therefore acts as a moral constraint that legitimates blaming practices in the criminal law. It draws a boundary between moral fault and attribution of results to individuals.[168]<\/a><\/p>\n Second, the need to protect morally innocent persons from conviction and punishment is generally rooted in incapacity or lack of moral fault. Various criminal law doctrines illustrate this point.[169]<\/a> In <\/a>I.\u00a0 Factual and Legal Causation Generally<\/h1>\n
<\/a>A.\u00a0 Factual Causation<\/h2>\n
<\/a>B.\u00a0 Legal Causation<\/h2>\n
<\/a>II. Toward a Uniform Formulation for Factual Causation<\/h1>\n
<\/a>A.\u00a0 \u201cBeyond De Minimis\u201d Versus \u201cSignificant Contributing Cause\u201d<\/h2>\n
<\/a>B.\u00a0 Toward the Uniform Standard of Significant Contributing Cause<\/h2>\n
<\/a>C.\u00a0 Limitations to But-For Causation<\/h2>\n
<\/a>III. Rethinking Intervening Acts and Legal Causation<\/h1>\n
<\/a>A.\u00a0 The Limited Role of Independent Intervening Acts in Canadian Law<\/h2>\n
<\/a>B.\u00a0 Why Reasonably Foreseeable Intervening Acts Matter for Causation<\/h2>\n
<\/a>IV. Causation and Fair Attribution<\/h1>\n
<\/a>A.\u00a0 Factual Causation: An Ascriptive Approach<\/h2>\n
<\/a>B.\u00a0 Legal Causation and Fair Attribution<\/h2>\n