WARNING
THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO:
110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
(2) Subsection (1) does not apply
(a) in a case where the information relates to a young person who has received an adult sentence;
(b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and
(c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.
(3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.
111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985,
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
Court of Appeal for Ontario
Date: 20220519 Docket: C68620
Gillese, Brown and Coroza JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
H.C. Appellant
Counsel: Alan D. Gold and Ellen C. Williams, for the appellant Lisa Joyal, for the respondent
Heard: December 15, 2021
On appeal from the conviction of Justice Stephen D. Brown of the Ontario Court of Justice, dated June 15, 2020.
Coroza J.A.:
I. Overview
[1] On July 13, 2018, K.P. was tragically shot to death in the appellant’s bedroom located in the basement of his grandmother’s house in Oakville. The appellant had invited his friends C.A., I.S., and K.P. over to socialize. They had consumed drugs and alcohol to the point of intoxication.
[2] The gun that killed K.P. was a sawed-off shotgun that belonged to the appellant. He had bought the shotgun from C.A. or C.A.’s associate. The appellant and his friends would routinely drink alcohol, do drugs, and play with the shotgun as if it was a toy. They took turns handling the gun, pulling the trigger, and posing with it for pictures and videos pretending to be gangsters.
[3] On one occasion, when C.A. and the appellant were at the home of the appellant’s girlfriend, C.A. was playing with the shotgun down his pants and dancing when, to his surprise, it accidentally discharged and blew a hole through his pants and in the floor. C.A. had been high on drugs and alcohol and did not know or remember that the gun was loaded. The appellant was present during this incident and all the boys knew about this incident.
[4] On the evening of the shooting, the appellant and his friends were playing with the shotgun. Some of the boys had planned to attend an outdoor festival in Oakville called Midnight Madness and decided to take the shotgun with them because earlier that evening, the appellant and I.S. had received threatening text messages on their phones.
[5] The appellant had left ammunition for the shotgun in plain view on his coffee table. Just prior to the shooting, the appellant went upstairs to get a drink. He left the shotgun in the basement with the other boys. While he was upstairs, he heard a loud noise coming from the basement. When he ran back downstairs, he discovered that K.P. had been accidentally shot in the chest.
[6] C.A. fled from the home. The appellant and I.S. dragged K.P.’s body outside to the sidewalk at the end of the driveway. They both took deliberate steps to make it look as though intruders had shot K.P. Once the police arrived, the appellant and I.S. lied about the events.
[7] I.S. and the appellant were charged jointly with manslaughter by criminal negligence contrary to s. 236 (a) of the Criminal Code of Canada , R.S.C., 1985, c. C-46, s. 234 . They were charged as young persons within the meaning of the Youth Criminal Justice Act , S.C. 2002, c. 1.
[8] At trial, the Crown’s position was that the appellant loaded the shotgun just prior to the boys’ departure for the festival but did not tell anyone he had done so. Soon after the appellant left the room, I.S. pulled the trigger of the gun, without checking to see whether the gun was loaded, and shot K.P.
[9] In the alternative, the Crown argued that, regardless of whether the appellant was the one who had loaded the gun, he was still guilty of manslaughter by criminal negligence because he had a duty to ensure that the firearm was handled and stored safely, and to take precautions for the safety of others in relation to these items. According to the Crown, the appellant’s failure to safely store and handle the gun and ammunition was a significant contributing cause of K.P.’s death.
[10] For his part, the appellant argued that he did not load the shotgun, and that the effect of alcohol and drugs that night meant that any of the others could have loaded the gun and may not have been in a state to appreciate or remember that it was loaded when it was ultimately picked up and the trigger was pulled. The appellant further argued that his actions in having the gun and ammunition out in his room that night merely set the scene and was “too remote” for what ultimately occurred. He argued that the loading and firing of the gun were intervening acts that severed the chain of causation. In the alternative, the appellant argued that if the trial judge found that he had loaded the gun, it would not have been reasonably foreseeable that one friend would shoot another.
[11] The trial judge concluded that he could not find beyond a reasonable doubt that I.S. shot K.P. The trial judge found I.S. not guilty of manslaughter. With respect to the appellant, the trial judge concluded that he could not find beyond a reasonable doubt that he had loaded the gun before the shooting. However, he accepted the Crown’s alternative argument and found the appellant guilty of manslaughter by criminal negligence because of the appellant’s failure to safely store the weapon and ammunition which was a significant contributing cause of the death of K.P. The trial judge found that the possibility of the boys pointing and pulling the trigger on the firearm was reasonably foreseeable.
[12] On this appeal, the appellant contends that the trial judge erred in his causation analysis. The appellant argues that the surreptitious loading and shooting of the gun were two intervening acts that severed the chain of causation and that he was not a significant cause of the tragic death. The appellant asks that the appeal be allowed, the conviction be quashed, and an acquittal entered. In the alternative, he seeks a new trial.
[13] I see no basis for appellate intervention and would dismiss the appeal. The trial judge provided exemplary reasons for conviction that were responsive to the arguments advanced by the appellant in the court below. The trial judge carefully considered and applied the Supreme Court of Canada’s decision in R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30; made no error in determining whether an intervening act had broken the chain of causation; and his findings of fact were fully available on the evidence.
II. Background Facts
[14] The appellant purchased the shotgun in June 2018 – about one month and a half prior to the shooting. The appellant and his friends had become infatuated with the “gangster lifestyle” and partied with alcohol, drugs, and guns. They often played with the appellant’s shotgun by holstering it and pointing it at one another. Their normal pattern was to become intoxicated and bring the gun out and play with the gun. When handling the unloaded gun, they frequently pulled the trigger. They posted photos and videos of themselves playing with the gun on social media. All the boys knew how to load and handle the gun.
[15] On July 13, 2018, the appellant, K.P., I.S., and C.A. were in the appellant’s room at the home of his grandmother. The gun was out, and the friends had been playing with it and pulling the trigger without consequence throughout the evening. They were high on alcohol and drugs. At least some of the young men had planned to go later that night to Midnight Madness, which was a festival in downtown Oakville. They had decided to bring the shotgun with them because two of them had received threats.
[16] Over the course of the evening, someone, unbeknownst to the others, had taken the ammunition lying next to the shotgun and loaded the gun.
[17] At the time of the shooting, the appellant had gone upstairs to get a drink. While upstairs, he heard a loud sound like a firecracker. When he returned to his room, he discovered that K.P. had been shot.
[18] On one specific incident prior to the shooting, the shotgun was brought to the house of the appellant’s girlfriend. At the home, the appellant and C.A. consumed drugs and alcohol – the same or similar to the substances consumed on July 13, 2018. C.A. was dancing with the shotgun tucked into his pants. The gun accidentally discharged and blew a hole in C.A.’s pants and in the floor. C.A. did not know that the gun was loaded. He was unsure if he loaded it and forgot due to his intoxication or whether someone else had loaded the gun without telling him. C.A. was uninjured during this prior date, but the incident became common knowledge among all the boys who were present in the appellant’s room on July 13, 2018.
III. The Trial Judge’s Reasons
[19] The trial judge provided lengthy, careful, and thorough reasons for judgment. The trial judge was satisfied that the person who fired the gun did not know it was loaded and that the person who loaded the gun did not intend that it be used to kill someone. In other words, this was an accidental shooting.
[20] The trial judge determined that the appellant, as the owner of the gun, had a duty of care to properly store the sawed-off shotgun and the ammunition. The trial judge found that the gun and ammunition were always stored carelessly as they were never properly locked up. The gun was kept either in a duffle bag or sometimes under the couch.
[21] On the night of the shooting, as was their custom, the boys were drunk, high, and playing with the gun. Ammunition was lying out in the open on the coffee table in the room. The appellant had acknowledged (in an agreed statement of facts filed as an exhibit) that I.S. and K.P. were going to attend the outdoor festival.
[22] The threatening messages the appellant and I.S. were receiving that evening were one reason that the boys decided to take the gun to the festival. Although the weapon had some deterrent value if it was unloaded, it provided a much greater deterrent against the real or perceived threats if it was loaded.
[23] Although the appellant had been present in the room through the evening, he was not present in the room when the gun was fired. The trial judge concluded that it was unclear whether the appellant loaded the gun, and he could not find that fact beyond a reasonable doubt. However, the appellant’s friends knew how to load and unload the gun. The appellant and his friends had consumed drugs and alcohol and were intoxicated. The appellant was present when his friends saw the gun being loaded and unloaded in the past, and was present when the group was becoming intoxicated on July 13, 2018. The appellant also knew that each of his friends had acted recklessly with the gun, including that evening, by pointing the gun at others and pulling the trigger under the assumption the gun was unloaded.
[24] The trial judge also observed that the appellant and the rest of the boys knew that C.A., while intoxicated on a previous occasion, had accidentally discharged the gun not knowing that it had been loaded. Indeed, the appellant was with C.A. during this accidental discharge.
[25] The trial judge determined that the appellant’s actions fulfilled the actus reus for manslaughter through criminal negligence. He reasoned that the appellant failed to properly store the firearm and the ammunition, as was his legal duty.
[26] The trial judge determined that the mens rea for manslaughter by criminal negligence was also met. In his view, the appellant acted with wanton and reckless disregard for the lives and safety of others by leaving the gun and ammunition readily accessible to his intoxicated friends, all of whom knew how to load the gun. The appellant knew that two of the boys were going to go to the festival and take the gun with them for protection. When the appellant went upstairs just before the shooting, the appellant knew that the gun was likely to be loaded when taken to the festival as the time crept closer to departure. Therefore, according to the trial judge, the appellant’s conduct was a marked and substantial departure from that of a reasonable person in the circumstances.
[27] The trial judge then turned his mind to the question of causation, both legal and factual, between the appellant’s actions and omissions and K.P.’s death. The trial judge recognized that the potential intervening acts were the intentional loading of the gun and the subsequent intentional pulling of the trigger. He ultimately concluded that the chain of causation between the appellant’s acts or omissions and K.P.’s death was not broken by one or more intervening acts.
[28] The trial judge found that the appellant had left the gun and ammunition on the table so that it was readily accessible. The gun could be loaded by any of the intoxicated boys in the room. Therefore, it was reasonably foreseeable to the appellant that the gun could discharge under these circumstances, as there had been a past accidental discharge involving C.A. when C.A. was intoxicated and did not know or remember that the gun had been loaded. The fact that the boys were intoxicated, it was their normal practice when the weapon was out to point it at one another and pull the trigger, ammunition was present in close proximity, and they all knew how to load the weapon – and the appellant was aware of these facts – contributed to the reasonable foreseeability of the intervening acts.
[29] The trial judge determined that it would be artificial to break the chain of causation between the appellant’s actions and omissions and K.P.’s death because one of the boys may have loaded the weapon without the knowledge of the others.
[30] As a result, the trial judge concluded that the Crown proved beyond a reasonable doubt all the essential elements of the charge of manslaughter by criminal negligence under s. 236 (a) of the Criminal Code .
IV. Position Of Parties On Appeal
[31] The appellant argues that on a principled and objective application of the relevant legal principles, the appellant’s general discreditable behaviour in relation to the shotgun and ammunition was not in law a substantial cause of the death of K.P. He argues that the “ secret” loading of the gun by one of the boys remained unknown to whoever intentionally fired the fatal shot. According to the appellant, there were two intentional acts by third parties – the loading of the gun and the pulling of the trigger – that severed the causation between the appellant’s conduct and the killing.
[32] The respondent argues that the trial judge did not err in his approach to the issue of causation. To the contrary, the respondent argues that the trial judge engaged in an extensive analysis of the appellant’s arguments on causation, properly considered the evidence and law in his determinations, and made no error in concluding that the appellant’s acts and omissions were a “significant contributing cause” of K.P.’s death.
V. Analysis
(1) Overview of manslaughter and significant contributing cause
[33] Under the Criminal Code , manslaughter is defined as “culpable homicide that is not murder or infanticide”. Based on this definition, manslaughter is when a person causes the death of another by criminal negligence or an unlawful act without malice aforethought: see R. v. Creighton, [1993] 3 S.C.R. 3. The mens rea of the offence does not reach the level of murder.
[34] To prove manslaughter beyond a reasonable doubt, the Crown must prove: (i) an unlawful act or omission ( actus reus ); (ii) that the unlawful act or omission was inherently dangerous in that it presented an objectively foreseeable risk of causing injury and was a marked departure from the standards of a reasonable person ( mens rea ); and (iii) that the act or omission caused the death (causation): see R. v. Plein, 2018 ONCA 748, 365 C.C.C. (3d) 437, at para. 30.
Actus Reus
[35] The Supreme Court of Canada has specified that the actus reus of criminal negligence causing death requires that the accused undertook an act – or omitted to do something within their legal duty – which caused someone’s death: R. v. Javanmardi, 2019 SCC 54, [2019] 4 S.C.R. 3, at para. 19. The elements of the offence of criminal negligence causing death under s. 219 of the Criminal Code are the same as manslaughter by criminal negligence under s. 236 of the Criminal Code . This definition of actus reus under criminal negligence causing death applies to manslaughter by criminal negligence as well.
Mens Rea
[36] Under the Criminal Code , the mens rea for criminal negligence causing death is that the act or omission is performed with “wanton or reckless disregard for the lives or safety of other persons.” The jurisprudence has framed the mens rea for offences based on criminal negligence as a “marked and substantial departure from the conduct of a reasonably prudent person in circumstances in which the accused either recognized and ran an obvious and serious risk or, alternatively, gave no thought to that risk”: see R. v. A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269, at para. 61.
Causation
[37] The causation analysis for manslaughter by criminal negligence must focus on both factual and legal causation: R. v. Romano, 2017 ONCA 837, at para. 26.
[38] Factual causation is whether but for the accused’s actions, the death would have occurred: see R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at paras. 7-9. The accused’s actions will have caused death when their actions are a “significant contributing cause of death” beyond a de minimis range: see Nette, at para. 71; R. v. Smithers, [1978] 1 S.C.R. 506, at p. 519. Factual causation focuses on the connection between the act of the accused and the prohibited consequence, in a mechanical or physical sense: Romano, at para. 26.
[39] Legal causation “is a narrowing concept which funnels a wider range of factual causes into those which are sufficiently connected to a harm to warrant legal responsibility”: see Maybin, at para. 16. This inquiry is concerned with whether the accused should be held legally responsible for the death so that a moral innocent is not punished: see Nette, at para. 45; Maybin, at para. 29; R. v. Talbot, 2007 ONCA 81, 217 C.C.C. (3d) 415, at para. 80. In specific cases where the factual causation test is met, legal causation enables these cases to be removed from the net of criminal liability. In effect, there are specific circumstances that recognize that the act of the accused should not be imputed as a significant contributing cause: Romano, at para. 29.
[40] In Maybin, a case involving unlawful act manslaughter, the appellants who were involved in a bar fight, punched the victim rendering him unconscious. A third party, a bouncer, arrived on the scene and, believing that the victim was the aggressor, dealt him another blow that may have been the medical cause of death. The appellants argued that they did not cause the death because the bouncer’s conduct was not reasonably foreseeable and was an independent intervening act. The Supreme Court disagreed.
[41] The court explained, at para. 28, that the principles of reasonable foreseeability and independent intervening act are relevant but not dispositive on the issue of causation:
[W]hile such approaches may be helpful, they do not create new tests that are dispositive. Neither an unforeseeable intervening act nor an independent intervening act is necessarily a sufficient condition to break the chain of legal causation. Similarly, the fact that the intervening act was reasonably foreseeable, or was not an independent act, is not necessarily a sufficient condition to establish legal causation. Even in cases where it is alleged that an intervening act has interrupted the chain of legal causation, the causation test articulated in Smithers and confirmed in Nette remains the same: Were the dangerous, unlawful acts of the accused a significant contributing cause of the victim’s death?
[42] With respect to reasonable foreseeability, the court in Maybin stated as follows, at para. 30:
An intervening act that is reasonably foreseeable will usually not break or rupture the chain of causation so as to relieve the offender of legal responsibility for the unintended result. This approach posits that an accused who undertakes a dangerous act, and in so doing contributes to a death, should bear the risk that other foreseeable acts may intervene and contribute to that death. Because the issue is whether the actions and consequences were reasonably foreseeable prospectively, at the time of the accused’s objectively dangerous and unlawful act, it accords with our notions of moral accountability. This approach addresses the question: Is it fair to attribute the resulting death to the initial actor?
[43] Maybin also makes it clear that it is not the specific subsequent act that must be foreseen for an outcome to have been reasonably foreseeable. Rather, “[f]rom the perspective of moral responsibility, it is sufficient if the general nature of the intervening act and the risk of non-trivial harm are objectively foreseeable at the time of the dangerous and unlawful acts”: Maybin, at para. 34. In that case, the general nature of the harm (a third party who may joining in or trying to break up the fight) and the ensuing risk was reasonably foreseeable: Maybin, at paras. 40-41.
[44] Turning to the independent intervening act argument, the court noted in Maybin, at paras. 47-50, the number of different ways in which an act has been determined to be “independent.” The court then found, at para. 59, that the bouncer’s act was not so independent as to reduce the appellants’ conduct to below the level of significant contributing cause because it was open to the trial judge to find that the bouncer’s act was closely connected in time, place, circumstance, nature, and effect with the appellants’ acts and that the effects of the appellants’ actions were still “subsisting” and not “spent” at the time the bouncer acted. The actions of the bouncer were not so “overwhelming” as to make the effect of the original assaults merely part of the history so that it can be said that the original assaults were not “operative” at the time of death.
[45] In sum, Maybin confirms that intervening acts play a role in the legal causation analysis, as they may disrupt the chain of causation between the accused’s action and the death. The inquiry is whether intervening acts rendered the accused’s actions so remote from the death such that the accused should not be held responsible: at paras. 30, 39.
[46] Maybin, at para. 28, has further clarified that “Even in cases where it is alleged that an intervening act has interrupted the chain of legal causation, the causation test articulated in Smithers and confirmed in Nette remains the same: Were the dangerous, unlawful acts of the accused a significant contributing cause of the victim’s death?”
(2) Standard of review
[47] Maybin, at para. 17, emphasizes that causation issues are “case-specific and fact-driven”. Therefore, the facts of the case at bar will necessarily inform the causation analysis.
[48] This indicates a deferential standard if the trial judge’s findings of fact leave it open to the trial judge to “conclude that the general nature of the intervening act and the accompanying risk of harm were reasonably foreseeable”: see Maybin, at para. 61.
(3) The Principles Applied
[49] In oral submissions, the appellant narrowed his arguments to one issue. The appellant argues that the trial judge’s analysis on causation overlooked the intentionality of two intervening acts: 1) the act of an unknown person secretly loading the gun; and 2) the act of the person who fired the gun. The appellant contends that whoever pulled the trigger had assumed that it was unloaded. Once the gun was in someone else’s hands, the person who secretly loaded the gun was responsible for the death of K.P. and had effectively intervened to sever any legal responsibility that the appellant had for his storage and use of the shotgun and the ammunition.
[50] I do not accept this submission.
[51] As summarized above, the trial judge’s reasons were detailed and thorough with regard to every element of the offence, including causation. The trial judge also properly instructed himself in accordance with the principles set out in Maybin. There is no basis to intervene with his careful findings.
[52] As set out above, causation has two components: factual and legal. Factual causation is satisfied if the accused is a “but for” cause of the prohibited result. Again, “the trier of fact usually asks: “But for” the action(s) of the accused, would the death have occurred?”: Maybin, at para. 15. Factual causation is not limited to the direct and immediate cause, nor is it limited to the most significant cause: Maybin, at para. 20. The test is whether the accused’s conduct was at least a significant contributing cause of the harm.
[53] It was open to the trial judge to find that the appellant was a “but for” cause of K.P.’s death. The trial judge acknowledged that the appellant was not present in the room when the gun was fired. However, he found that the appellant knew that each of his friends had engaged in reckless behaviour with the gun in the past and that evening. The trial judge found that had the appellant’s failure to take any steps to secure the gun or take the ammunition with him upstairs satisfied factual causation. The trial judge put it this way:
[303] Be that as it may, had H.C. taken any steps to secure the gun or even put the shell in his pocket and taken it with him upstairs it would have prevented this death. On his own admission, he did not do so, but instead left it readily accessible to be loaded into a carelessly stored shotgun, that he had a legal duty to ensure was safely stored. But for him not taking the live shell upstairs or safely storing the weapon, K.P. would not have been shot.
[304] I cannot find on the record before me who loaded the shotgun, although I suspect it was H.C. It could, however, have been C.A. as he had done so in the past. It could have been any of the other boys. I am satisfied that whoever fired the gun did not know that it was loaded. I am certain that this is not an intentional homicide and that someone other than the shooter loaded the weapon at some earlier time and did not tell the others or forgot that they loaded it because of their intoxication.
[305] H.C. left to go upstairs just before the shooting knowing that at least two of the boys (if not all of them) were going to go to Midnight Madness and to take the shotgun with them for protection. As the time crept closer to departure, the likelihood of someone loading the shotgun increased. Even if H.C. did not load the gun himself, he knew that it was likely to be loaded when taken to the festival.
[54] While it is true that the appellant’s actions were not the direct cause of death, the determination of factual causation is not an assessment that focuses on the person who loaded the gun and/or fired it. The issue before the trial judge was whether the appellant caused the death of K.P. I see no error in the trial judge’s analysis.
[55] The trial judge also turned his mind to legal causation which looks to whether the appellant should be held liable for the result. Again, legal causation is a legal rule “based on concepts of moral responsibility and is not a mechanical or mathematical exercise”: Nette, at para. 83. The trial judge also considered and rejected the doctrine of intervening acts advanced by the appellant at trial.
[56] The trial judge carefully considered the argument by the appellant at trial that the appellant’s actions were so remote to establish causation that it could not be said to have “triggered” or “provoked” the action taken by the intervening parties (the individuals who loaded the gun and fired it) . The trial judge specifically dealt with this argument about intervening actors and held, at para. 328 of his reasons, that “even leaving the gun and ammunition so that it could readily be loaded” by the other boys “does more than just set the stage for the events that followed.” According to the trial judge “[i]t was foreseeable to everyone that [the] gun could and did in the past discharge accidentally under similar circumstance involving C.A.”
[57] In my view, the trial judge did not ignore, as the appellant asserts, the intentional actions of the person who secretly loaded the gun unbeknownst to others as a potential intervening act that severed causation. The trial judge specifically found that that the appellant left to go upstairs just before the shooting knowing that at least two of the boys (if not all of them) were going to the festival armed with the shotgun for protection. Significantly, the trial judge found that closer to departure, the likelihood of someone loading the shotgun increased and that the appellant knew that even if he did not load it, he knew it was likely to be loaded when taken to the festival. This, combined with the fact that the boys were all intoxicated and prone to frequently play the gun, left it open to the trial judge to find that the dangerous, unlawful acts of the appellant were a significant contributing cause to K.P.’s death, despite the intervening acts. The trial judge put it this way:
[335] In light of my finding that all four boys were under the influence of drugs and alcohol to varying degrees of intoxication and that it was their normal pattern when the weapon was out to point it at others and pull the trigger, that ammunition was or had been present in close proximity to the gun and that they were all aware that the weapon was capable of firing when loaded and had accidentally discharged in C.A.’s pants on an earlier occasion, I am of the view that it was reasonably foreseeable that one of the friends may point the weapon at another and pull the trigger, not knowing or forgetting that the weapon had been loaded. Each of the boys knew how to load the weapon. The constellation of these factors makes it reasonably foreseeable that the intervening acts that occurred would more likely occur, not less so as the defendant argues.
[58] In sum, the Supreme Court in Maybin directs that the causation analysis is based on the specific factual matrix in the case at hand and that intervening acts which are innocuous and unforeseeable should not be captured under causation. I agree with the trial judge’s observations at paras. 340-41 that “it would be entirely artificial to break the chain of events to absolve [the appellant] of responsibility” and that “to find severance in causation on these facts would do violence to the words of the test”. There is no basis to intervene with that determination. The actions of the person who loaded the gun did not absolve the appellant of legal responsibility for leaving the gun and ammunition in plain sight for any of the boys to load. Tragically, that gun was then pointed at K.P. and fired. It was open to the trial judge to conclude the appellant caused K.P.’s death.
VI. Disposition
[59] For these reasons, I would dismiss the appeal.
Released: May 19, 2022 “E.E.G.” “S. Coroza J.A.” “I agree. E.E. Gillese J.A.” “I agree. David Brown J.A.”
