January 31, 2016 · law case commentary criminal

R v Maybin: A Sweeping Standard for Manslaughter

1.   Introduction

The principle of not punishing the morally innocent, and more specifically, of only imputing legal liability for consequences one is “responsible” for, lies at the heart of Canadian criminal law. This notion of “responsibility”, or blameworthiness, is fundamentally based on the causal relationship between action and consequence. R v Maybin examines causation within the offence of manslaughter through the two analytical lenses of foreseeability and independence, and affirms the R v Smithers test of “a contributing cause of death, outside the de minimis range.”[1] However, Maybin’s broad application of this standard to the defence of novus actus interveniens potentially leads to an incongruence with the foundational principle of moral blameworthiness, and shows a need for differentiation within the offence of manslaughter.

1.1.   Facts

During a game of pool inside a dark and crowded bar, the appellant Timothy Maybin grabbed another patron and struck his face and head in quick succession following a dispute over a pool ball. After being hit a number of times without defending himself, the victim fell unconscious onto the pool table. Seconds later, a bar bouncer who was attracted to the commotion of the scene immediately – and with considerable force – struck the unconscious victim on the back of the head. He did so in an attempt to control the scene and subdue the individual who he thought was the source of the fighting. Internal bleeding in the brain subsequently led to the victim’s death, caused by Maybin’s blows, the bouncer’s blows, or a combination of both.

2.   Judgments

At trial, the judge held that the Crown needed to prove beyond a reasonable doubt that the defendant’s actions were “a significant contributing cause” of death.[2] Both the defendant and the bouncer were acquitted.

The majority in the Court of Appeal held that the trial judge failed to consider the issue of legal causation. Instead of asking the narrow question of whether the defendant was the medical cause of death, the majority affirmed the Smithers “contributing cause, outside the de minimis range” standard as the test for causation. Death was the “but for” result of the defendant’s actions, and therefore the factual cause.[3] The majority proceeded to find that the bouncer’s intervention could be found at trial to have been reasonably foreseeable and not a novus actus interveniens. The defendant’s contributions to the victim’s death would thus be sufficiently outside the de minimis range to establish legal causation.

The dissenting opinion similarly upheld the Smithers standard of causation, but found that the independent and intentional intervention of the bouncer constituted a novus actus interveniens and thus severed the chain of legal causation. The independent and voluntary nature of the bouncer’s act were important distinguishing factors in light of R v Pagett’s “free, deliberate, and informed” standard, as was the lack of evidence to suggest that it was objectively foreseeable.[4]

In a unanimous ruling, the Supreme Court in Maybin held that the principles of foreseeability and independence invoked in the Court of Appeal’s judgment are both “helpful analytical tools” in assessing legal causation, but do not themselves constitute a new causation rule.[5] Neither an unforeseeable nor independent intervening act, without more, are sufficient to break the chain of legal causation. Instead, the Court affirmed the primacy of the de minimis standard for manslaughter offences and found that the defendant’s actions were a significant contributing cause of the victim’s death. The bouncer’s assault did not sever the legal chain of causation, as it was open for the trial judge to conclude that the risk of intervention by the bouncer was objectively foreseeable and that it was insufficiently independent of the defendant’s acts.

3.   Context and Implications

Smithers held that the defendant was liable for the death of a hockey player who died from a medically rare case of spontaneous aspiration after vomiting because of the defendant’s kick to his stomach. In determining whether the jury was entitled to find that the kick caused the death, the Court then held it was “at least a contributing cause of death, outside the de minimis range, and that is all that the Crown was required to establish.”[6]

The majority in R v Nette affirmed the de minimus causation standard, but aligned its formulation more closely with R v Hardbottle’s wording of “a substantial and integral cause” for manslaughter offences.[7] According to the Court, the positive phrasing of “significant contributing cause” is preferable to the negatively phrased de minimis standard.[8] Nette also held legal causation to be concerned with “moral responsibility” consistent with the principle of not punishing the morally innocent, in a “case-specific and fact-driven” context.[9]

Maybin affirmed both Smithers and Nette in terms of the standard of causation, and moved the common law in Canada further away from Pagett’s focus on assessing whether the intervening act was involuntary. The Court endorsed the principles of foreseeability and independence insofar as they are mere analytical aids with respect to the de minimis test, holding that the details of an intervening act need not have been foreseeable by the defendant to establish criminal liability. In encompassing an intervening act, this expanded on R v Creighton, where the majority held that “the test of harm and death merge” when considering foreseeability.[10] It is only “the general nature of the intervening act and the risk of non-trivial harm” – to the extent that they “flowed reasonably” from the conduct of the defendant – that needs to be foreseeable, and not the specific act itself or the consequent death.[11] These factors combine to advance a broader and more sweeping standard for legal causation.

R v Cribbin considered the constitutionality of the Smithers test, and whether the threshold of beyond a de minimis range infringes on the principle of fundamental justice in s. 7 of the Charter for being too vague and “too remote to engage criminal responsibility for homicide.”[12] In light of Creighton’s blending of bodily harm and death, however, Cribbin found that “the additional requirement of objective foresight” negates the risk of implicating the morally innocent.[13]

4.   Moral Responsibility

As noted by the Court in Nette amongst others, liability in the context of criminal law turns on the consequences of an action imputing moral responsibility to the actor. Sanction for an outcome that is not “owned” by the actor would thus violate the principle of not punishing the morally innocent. Section 7 of the Charter enshrines this right within the principle of fundamental justice.

The notion of “ownership” can serve as a useful analytical framework for analyzing the nexus between causation and moral culpability. An outcome of an act, understood analogously to an object subject to property rights, gains intelligibility relative to the agent whose purpose it manifests.[14] Outcomes that deviate from the purpose of an agent’s act leave a remainder, thus reducing the extent to which moral responsibility may be imputed.[15]

Maybin’s standard for legal causation raises two potential problems with respect to the risk of punishment without desert, when considered within this framework. First, its overly broad application of Creighton’s foreseeability test does not adequately reflect the contextual and situational nature of any remainder that may arise from a given outcome. Second, its specific examination of proximity and independence overly focuses on the physical time, location, and nature of the intervening act itself.

4.1.   Foreseeability

The holding that only the general nature of the intervening act and the associated risk of non-trivial harm needs to be foreseeable, as a broad test, disregards the possibility that differing outcomes can affect the imputability of moral responsibility. R v Shilon, which the Court cites in Maybin, illustrates a narrower standard for criminal negligence causing death as the foreseeability of “immediate and substantial harm.”[16] Contrast this with Maybin, which formulates the standard for manslaughter as “non-trivial harm.”[17]

In an extension of the principle of the “thin skull rule” recognized in Creighton and Smithers, the objective foreseeability of risk of any non-trivial harm that flows from intervention is sufficient for legal causation. This potentially creates full criminal liability for outcomes that greatly deviate from the purpose of an agent’s original act. A hypothetical fact scenario analogous to Smithers, wherein the defendant threw but one light punch, still appears to be sufficient for manslaughter. Conviction results even though it is near impossible to articulate how, in this situation, the specific outcome of death was intelligible relative to the purpose of the single punch.

4.2.   Proximity and Independence

The defence of novus actus interveniens further complicates the analysis of foresight, as an intervenor can alter the moral ownership of an outcome and the residual remainder. Maybin, however, de-emphasizes this implicit notion of independence arising from the agency of the intervenor relative to the physical and temporal proximity of the intervening act itself. The Court suggests that when considering whether the intervention was “so independent of the actions of the appellants”, to do otherwise “misplaces the focus on the actor, as opposed to the nature of the intervening act.”[18]

The finding that the bouncer acted in direct and virtually immediate reaction by virtue of the “subsisting” nature of the defendant’s actions ignores the potential for the intervenor’s conscious purpose to overwhelm and subordinate the initial act. Consider a scenario where another patron, perhaps with a score to settle, deliberately and heavily struck the victim with a glass bottle or pool cue in an opportunistic reaction to the defendant’s initial punch. As the Court in Maybin found physical intervention from patrons foreseeable, and as the initial punch likely contributed beyond the de minimis range, it appears that the defendant could nevertheless be held fully liable for manslaughter. Yet this outcome is incongruous with the inference that such an intervention, resulting in an outcome uncontemplated and unforeseen by the initial actor, is intelligible in light of the intervenor’s purpose to a degree significant enough to reduce or negate the initial actor’s culpability.

5.   Conclusion

The implications of Maybin, with respect to its sweeping standard for causation, suggest a need for differentiation within the offence of manslaughter that reflects the varying potential degrees of moral responsibility. Though a court may vary the punishment in light of mitigating factors, nevertheless, conviction for manslaughter and the implicit social and moral responsibility attached is currently a binary outcome.[19] The potential liability for manslaughter that flows from Maybin is thus nonetheless problematic within a framework of culpability, owing to its broad understanding of foreseeability and its misplaced emphasis when considering intervening acts.

[1] R v Maybin, 2012 SCC 24 [Maybin]; R v Smithers (1977), [1978] 1 SCR 506 at para 24, 1977 CarswellOnt 25 [Smithers].

[2] R v Maybin, 2008 BCSC 1277 at para 280.

[3] R v Maybin, 2010 BCCA 527 at para 25.

[4] R v Pagett, (1983) 76 Cr App R 279, 1983 WL 215490 [Pagett]; Ibid at paras 73, 76.

[5] Maybin, supra note 1 at para 44.

[6] Smithers, supra note 1 at para 24.

[7] R v Nette, 2001 SCC 78 at para 61 [Nette]; R v Harbottle, [1993] 3 SCR 306 at para 34, 1993 CarswellOnt 121.

[8] Nette, supra note 7 at para 71.

[9] Ibid at paras 45, 83.

[10] R v Creighton, [1993] 3 SCR 346 at para 30, 1993 CarswellOnt 115 [Creighton].

[11] Supra note 5 at paras 34, 38.

[12] R v Cribbin, [1994] OJ No 477 at para 39, 1994 CarswellOnt 57 [Cribbin].

[13] Ibid at para 61.

[14] See Alan Brudner, “Owning Outcomes: On Intervening Causes, Thin Skulls, and Fault-undifferentiated Crimes” (1998) 11 Can JL & Juris 89-114 at para 34.

[15] See Brudner, ibid at para 35.

[16] R v Shilon, [2006] OJ No 4896 at para 38, 2006 CarswellOnt 9888.

[17] Supra note 5 at para 33.

[18] Ibid at paras 40, 53 [emphasis added].

[19] See Kent Roach, Criminal Law, 5th ed (Toronto: Irwin Law, 2012) at 108; See also supra note 10 at para 18.