R. v. Harbottle, [1993] 3 S.C.R. 306
James Harbottle Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Harbottle
File No.: 23037.
Hearing and judgment: 1993: May 25.
Reasons delivered: 1993: September 30.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Murder ‑‑ First degree murder ‑‑ Death caused while committing enumerated offence ‑‑ Woman forcibly confined, sexually assaulted, mutilated and strangled ‑‑ Accused preventing victim from struggling while companion strangled her ‑‑ Whether or not guilty of first degree murder ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 214(5), am. S.C. 1980‑81‑82‑83, c. 125, s. 16 (now R.S.C., 1985, c. C‑46, s. 231(5)).
Appellant together with a companion forcibly confined a young woman. After his companion brutally sexually assaulted her and subjected her to a litany of atrocities while appellant watched, appellant and his companion discussed ways of killing her "nicely". When her struggling prevented their slashing her wrists, they decided to strangle her. Appellant held the victim's legs to prevent her from continuing to kick and struggle while his companion strangled her ‑‑ her hands were tied. The trial judge told the jury that she had difficulty pointing to evidence of planning and deliberation and also charged them on the basis that murder in the first degree could have occurred while the victim was being sexually assaulted or forcibly confined. Since it was impossible to know on which basis the jury reached its verdict of guilty, the charge with respect to s. 214(5) (now s. 231(5)) of the Criminal Code had to be correct in order to obviate a new trial. The conviction was upheld at the Court of Appeal where it was conceded that appellant was a party to the murder while participating in her forcible confinement and sexual assault. At issue here was whether appellant's participation was such that he can be found guilty of first degree murder pursuant to s. 214(5).
Held: The appeal should be dismissed.
Given that appellant and his companion discussed ways of killing their victim "nicely", there was ample evidence upon which the jury could have found that the murder was planned and premeditated by both appellant and his companion.
The question of causation under s. 214(5) "does not require a determination of who is a party to the commission of a particular offence" under s. 21. The broad wording of s. 21 makes a consideration of fine distinctions between first and second degree principals to a crime and between accessories before and after the fact unnecessary and inappropriate.
Parliament included a causation requirement in s. 214(5) with the words "when death is caused by that person". This phrase is more than an adoption by reference of the phrase (in s. 212(a), now s. 229(a)) "where a person who causes the death of a human being" means to cause his death. The words in s. 214(1), do not compel the extremely narrow interpretation that the subsection only applies to a person who diagnostically occasioned the victim's death. The word "caused" is broad enough to include both perpetrators and those who assist in the murder and comes within the purview of the substantial cause test.
First degree murder is an aggravated form of murder and not a distinct substantive offence. Section 214(5) is a sentencing provision to be considered after the jury has found the accused guilty of murder. The gravity of the crime and the severity of the sentence both indicate that a substantial and high degree of blameworthiness, above and beyond that of murder, must be established in order to convict an accused of first degree murder.
The test of causation for s. 214(5) must be a strict one, given the consequences of conviction for first degree murder and given the wording of the section. An accused may only be convicted under the subsection if the Crown establishes that he or she has committed an act or series of acts which are of such a nature that they must be regarded as a substantial and integral cause of the death.
Causation occurs when an act or a series of acts (in exceptional cases an omission or series of omissions) consciously performed by the accused is or are so connected with the event that it or they must be regarded as having a sufficiently substantial causal effect which subsisted up to the happening of the event, without being spent or without being in the eyes of the law sufficiently interrupted by some other act or event. The accused must play a very active role ‑‑ usually a physical role ‑‑ in the killing. Under s. 214(5), the actions of the accused must form an essential, substantial and integral part of the killing of the victim. Obviously, this requirement is much higher than that necessary for manslaughter.
Physically causing the death of the victim will in most cases be required to convict under s. 214(5). However, while the intervening act of another will often mean that the accused is no longer the substantial cause of the death under s. 214(5), there will be instances where an accused could well be the substantial cause of the death without physically causing it.
An accused may be found guilty of first degree murder pursuant to s. 214(5) if the Crown has established beyond a reasonable doubt that: (1) the accused was guilty of the underlying crime of domination or of attempting to commit that crime; (2) the accused was guilty of the murder of the victim; (3) the accused participated in the murder in such a manner that he or she was a substantial cause of the victim's death; (4) there was no intervening act of another which resulted in the accused no longer being substantially connected to the death of the victim; and, (5) the crimes of domination and murder were part of the same series of events. It would be appropriate to charge a jury in those terms.
All of the elements of the test were established by the evidence. Had appellant not held her legs, the victim probably would have been able to resist the attempts to strangle her.
The directions to the jury by the trial judge were eminently fair and adequately covered all the requisite elements of the offences of domination, murder and first degree murder.
Cases Cited
Considered: R. v. Kirkness, 1990 57 (SCC), [1990] 3 S.C.R. 74; R. v. Paré, 1987 1 (SCC), [1987] 2 S.C.R. 618; R. v. Black and Mackie, 1965 241 (ON CA), [1966] 3 C.C.C. 187; R. v. Gourgon and Knowles (No. 1) (1979), 1979 4423 (BC SC), 9 C.R. (3d) 313; R. v. Dollan and Newstead (1982), 1982 2006 (ON CA), 65 C.C.C. (2d) 240, aff'g (1980), 1980 2847 (ON SC), 53 C.C.C. (2d) 146; R. v. Woods and Gruener (1980), 1980 2928 (ON CA), 57 C.C.C. (2d) 220; referred to: R. v. Thatcher, 1987 53 (SCC), [1987] 1 S.C.R. 652; R. v. Harder, 1956 58 (SCC), [1956] S.C.R. 489; R. v. Munro and Munro (1983), 1983 3542 (ON CA), 8 C.C.C. (3d) 260; R. v. McGill (1986), 15 O.A.C. 266; R. v. Rodney, 1990 81 (SCC), [1990] 2 S.C.R. 687; R. v. Logan, 1990 84 (SCC), [1990] 2 S.C.R. 731; R. v. Martineau, 1990 80 (SCC), [1990] 2 S.C.R. 633; R. v. Farrant, 1983 118 (SCC), [1983] 1 S.C.R. 124; R. v. Hallett, [1969] S.A.S.R. 141; Smithers v. The Queen, 1977 7 (SCC), [1978] 1 S.C.R. 506.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1970, c. C-34, ss. 21, 205(1), 204 - 211, 212(a), 214(3), (5) (now R.S.C., 1985, c. C-46, ss. 21, 222(1), 224 - 228, 229(a), 231(3), (5)).
Criminal Law Amendment Act (No. 2), 1976, S.C. 1974‑75‑76, c. 105, s. 4.
Authors Cited
Colvin, Eric. Principles of Criminal Law, 2nd ed. Toronto: Carswell, 1991.
Mewett, Alan W., and Morris Manning. Criminal Law, 2nd ed. Toronto: Butterworths, 1985.
APPEAL from a judgment of the Ontario Court of Appeal (1992), 1992 7452 (ON CA), 8 O.R. (3d) 385, 54 O.A.C. 32, 72 C.C.C. (3d) 257, 14 C.R. (4th) 363, dismissing an appeal from conviction by Van Camp J. sitting with jury. Appeal dismissed.
Clayton Ruby and Paul Burstein, for the appellant.
Lucy Cecchetto, for the respondent.
The judgment of the Court was delivered by
Cory J. -- The appellant James Harbottle together with his friend Shawn Ross forcibly confined Elaine Bown. While she was still confined with her hands tied, Shawn Ross strangled her while Harbottle held her legs to prevent her from continuing to kick and struggle. What must be determined on this appeal is whether Harbottle's participation was such that he can be found guilty of first degree murder pursuant to the provisions of s. 214(5) of the Criminal Code, R.S.C. 1970, c. C-34, am. S.C. 1980-81-82-83 , c. 125, s. 16, (and now R.S.C., 1985, c. C-46, s. 231(5)) (cited herein to R.S.C. 1970).
Factual Background
The disposition of this appeal requires the sordid factual background to be set out in some detail. The body of Elaine Bown, a 17-year-old high school student from Font Hill, Ontario, was discovered by firefighters called to a fire at 5 Lowther Avenue in Toronto in the early morning hours of July 12, 1988. She was lying on her back with her hands tied above her head. She had been strangled and the remains of a brown brassiere were found around her neck. There were copious quantities of semen in her vagina. Her blood tested negative for alcohol and drugs.
This young girl was, for some strange reason, attracted by the street life of Toronto and would hitchhike into the city from Font Hill on weekends. How she met her sad fate is best described in the chilling words of the appellant uttered during a videotaped statement to the police. The appellant told the officers that prior to the rape and killing there had been no sexual activity between the victim and Ross. On the morning of the killing, Ross and the appellant woke the victim and asked if she wanted to accompany them to get some food and she said no. They left her and went to the Scott Mission to get a bag lunch. They then went to the clothing room and got some clothes. Ross then indicated to the appellant his intentions.
In a statement to the police the appellant recounted in grim detail the sordid sequence of events which included the sexual assault, forcible confinement and ultimately the murder of the victim. His words reveal a brutish insensitivity to human suffering and death. The appellant related that while they were returning from the Scott Mission, Ross told him he was going to assault the victim sexually. When they returned to the house on Lowther Avenue, Harbottle gave Ross his knife which Ross used to cut off Elaine Bown's clothes. Harbottle then watched while Ross raped her and perpetrated the most cruel and demeaning acts upon her.
The forcible confinement and murder of the victim are depicted in the statement of the appellant in these chilling words:
He cut her, put an "X" on her chest and uh, with a razor, and then stabbed her with a knife in the arm. And uh, after that -- well, he tied her up too and stuff and gagged her. And then after that he -- me and him went into another room actually and uh, I said now what are you going to do? You cut her up and stuff and uh, he said why don't we kill her. And uh, I said well I don't know, maybe. And then he said well why not. And I said okay, fine. And I carried her downstairs and what not. And then I said why don't we kill her nicely, you know. I didn't want her to go through any pain or anything. So he said why don't we cut her wrists. And I said go for it. And she said she didn't want to die. He said well I'm going to have to do it. So he started slashing her wrists but she pulled away what not, so he couldn't do that. So then he said why don't we strangle her. And I said go for it then. And he cut off her bra, take her bra, wrapped it around her neck. I grabbed her leg cause she started kicking and [Ross] strangled her to death. Then we put her under the couch and we left and went and panhandled for some glue and got a little high on glue. Then went back -- back about 3 o'clock in the morning or something like that and torched the place.... [Emphasis added.]
That it was essential for the appellant to intervene and to enable Ross to strangle the victim might be readily surmised from a comparison of the size of Ross and Elaine Bown. At the time of the murder, Shawn Ross was 17 years old, 5'7" tall and weighed only 130 lb. Elaine Bown was 5'4" tall and weighed 140 lb. This may give an indication of the importance and significance of the actions of Harbottle in holding her legs. The length and intensity of the struggle is also evidenced by the extensive bruising of the victim's neck which is typical of grabbing injuries and a sign of throttling.
The Court of Appeal (1992), [1992 7452 (ON CA)](https://www.canlii.org/en/on/onca/doc/1992/1992canlii7452/1992canlii7452.html), 8 O.R. (3d) 385
Harbottle was found by the jury to be guilty of first degree murder and given the mandatory sentence of life imprisonment with no eligibility of parole for 25 years. He appealed the conviction.
At the Court of Appeal, it was conceded that Harbottle was a party to the murder of Elaine Bown while participating in her forcible confinement or sexual assault. The sole question for determination was whether or not his participation was such that he could be found guilty of first degree murder pursuant to the provisions of s. 214(5) of the Criminal Code.
The Minority
The reasons of the minority carefully reviewed the history of the legislation which culminated in s. 214(5). It was the minority judge's view that the words in s. 214(5) "caused the death" indicated that the Crown must establish that the accused physically caused the death of the victim. That is to say that the accused's acts were the pathological or diagnostic cause of the death. Here, the death was caused by the strangulation which was effected by Ross. Thus, although Harbottle was at a minimum a party to the underlying offence of forcible confinement and he participated in the murder by holding the victim's legs, he did not occasion her asphyxiation. As a result, he could not be found to have committed first degree murder. The position was put this way at p. 420:
In the case at bar, the evidence established asphyxia as the cause of death. That result flowed entirely from the act of strangulation performed by Ross alone. There was no physical result flowing from Harbottle's actions which contributed to the asphyxiation of Ms. Bown. His acts adversely affected Ms. Bown's ability to resist Ross' attack but they did not contribute to her inability to breathe.
Harbottle's encouragement of Ross may have led Ross to do the act which caused Ms. Bown's death. Harbottle's restraining of Ms. Bown may have facilitated or even made it possible for Ross to strangle Ms. Bown. However, Harbottle performed no part of the single physical act which on the evidence resulted in the death of Ms. Bown. That result was entirely the product of Ross' own volitional act. Harbottle was no doubt a party to that act and was legally responsible for its consequences. He did not, however, physically cause those consequences.
The Majority
The majority agreed with the minority that liability under s. 214(5) was limited to the person or persons who by their own act or acts physically caused the death of the victim. However, they concluded that the words "caused the death" should not have such a narrow an interpretation as to require that the accused must be the diagnostic or pathological cause of the death. In their view, Harbottle's holding of the victim's legs while Ross strangled her with the brassiere was a sufficient basis to conclude that he had caused her death pursuant to the provisions of s. 214(5). They pointed out that if Harbottle had not done this, she might have resisted any attempts to strangle her just as she had successfully resisted the attempts to cut her wrists. They therefore dismissed the appeal.
Analysis
At the outset, I should express my complete agreement with Galligan J.A. speaking for the majority that there was ample evidence upon which the jury could have found that the murder of Elaine Bown was planned and premeditated by both Harbottle and Ross. Following the sexual assault, the two went out of the room and discussed the murder of the victim. They talked about slashing her wrists and Harbottle advocated that they kill her "nicely". Later, when slashing her wrists proved ineffective, they again discussed how best to kill her and determined that she should be strangled. Harbottle then carried her part way down the stairs until he fell. She walked the rest of the way. Ross and Harbottle then proceeded to carry out the planned strangulation. I would have thought that there would be no question that the jury's verdict of first degree murder could have been based upon the evidence of planning and premeditation.
However, the trial judge told the jury she had difficulty pointing to evidence of planning and deliberation. Therefore the jury was charged as well on the basis that the murder could have occurred while the victim was being sexually assaulted or forcibly confined and might thereby be found to be first degree murder. It is impossible to know on which basis the jury reached its verdict. It follows that if the charge with regard to s. 214(5) was not correct there must be a new trial. It is therefore essential that this issue be explored.
Section 214 is designed to impose the longest possible term of imprisonment without eligibility for parole upon those who commit the most grievous murders. It is concerned with contract killers, with those who murder police and correctional officers, with those who murder after due planning and premeditation, and with those who murder while committing crimes of domination.
To this effect, the portions of s. 214(5) relevant to this case provide that:
- ...
(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:
(b) section 246.1 (sexual assault);
(c) section 246.2 (sexual assault with a weapon, threats to a third party or causing bodily harm);
(d) section 246.3 (aggravated sexual assault); or
(e) section 247 (kidnapping and forcible confinement). [Emphasis added.]
At the outset I should state that I agree with Galligan J.A., at p. 391, that the question of causation under s. 214(5) "does not require a determination of who is a party to the commission of a particular offence" under s. 21. Certainly, principles of causation and secondary liability are not unrelated. See Eric Colvin, Principles of Criminal Law (2nd ed. 1991), at p. 349. On this subject, the English cases have made fine distinctions between first and second degree principals to a crime and between accessories before and after the fact. However, the broad wording of s. 21 makes a consideration of these fine distinctions unnecessary and inappropriate. See R. v. Thatcher, 1987 53 (SCC), [1987] 1 S.C.R. 652, at p. 693, citing R. v. Harder, 1956 58 (SCC), [1956] S.C.R. 489, at p. 493, and Alan W. Mewett and Morris Manning in Criminal Law (2nd ed. 1985), at p. 43. What must be determined is the meaning of the words "when the death is caused by that person" as they appear in s. 214(5).
It was the position of the appellant, based upon the reasons of the minority in the Court of Appeal, that the legislative history of s. 214(5) compels an extremely narrow interpretation of the words "death is caused". It is contended that the subsection is applicable only to a person who diagnostically occasions the death of the victim. This reasoning is based upon the amendments resulting from the Criminal Law Amendment Act (No. 2), 1976, S.C. 1974-75-76, c. 105, s. 4. That legislation changed the relevant wording of the section from "by his own act caused or assisted in causing the death" to "when the death is caused by that person," the wording which is still found in the current section. From this, it is argued that, since the new wording does not include "assisted", those who were simply parties to the murder could not be included. With respect I cannot accept that position.
The difficulties caused by such an interpretation can be readily appreciated when the old and new wording is juxtaposed:
Old -- "by his own act caused or assisted in causing the death"
New -- "when the death is caused by that person".
It can be seen that Parliament deleted both the words "his own act" and "caused or assisted in causing" and replaced them simply with the word "caused". That single word is, in my view, broad enough to include both perpetrators and those who assist in the murder and come within the purview of the substantial cause test I will set out later. Perhaps the error of the minority came about as a result of emphasizing the repeal of the words "assisted in causing" but leaving in, for purposes of interpretation, the old phrase "by his own act". This results in an interpretation of s. 214(5) as though it read "when death is caused by his own act" to the exclusion of the acts of other parties. On its face, the use of the wording "by that person" in the last version of the section cannot, in my view, have the same limiting effect as the previous formulation "by his own act".
On the other hand, the Crown contends that the phrase in s. 214(5) "when the death is caused by that person" is no more than an adoption by reference of the wording of s. 212(a) (now s. 229(a)) and not a distinct causation requirement. That provision states that culpable homicide is murder "where the person who causes the death of a human being" means to cause his death. (Emphasis added.) Neither can I accept that position. If Parliament had wished to accomplish this result it could have stated that murder was to be first degree murder "when the murder is committed by that person while committing" an offence of domination. Instead it reiterated a causation requirement within s. 214(5) and effect must be given to that additional phrase.
It is appropriate to review the terminology used in the Criminal Code's homicide provisions. It is not easy to understand the structure of these provisions. It will be seen that they are not completely consistent. With appropriate editing for this case they read as follows:
205.(1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.
- Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death ...
- ...
(3) Without limiting the generality of subsection (2) [planned and deliberate], murder is planned and deliberate when it is committed pursuant to an arrangement under which money or anything of value passes or is intended to pass from one person to another, or is promised by one person to another, as consideration for that other's causing or assisting in causing the death of anyone or counselling or procuring another person to do any act causing or assisting in causing that death.
(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:
(b) section 246.1 (sexual assault);
(c) section 246.2 (sexual assault with a weapon, threats to a third party or causing bodily harm);
(d) section 246.3 (aggravated sexual assault); or
(e) section 247 (kidnapping and forcible confinement). [Emphasis added.]
These sections appear to set out three levels of causation which are in addition to the special causation rules set out in ss. 204 to 211 (now ss. 224 to 228). In the general homicide definition, indirect causes are specifically included. However, they disappear in the murder and first degree murder definitions contained in ss. 212(a) and 214(5) (now ss. 229(a) and 231(5)). Yet effect must be given to the words "causing or assisting in causing the death" as they appear in s. 214(3).
The place and role of each section within the legislative scheme is therefore vital to a determination of the causation that is required for each of the homicide offences.
Case Law on the Section
There is an extensive jurisprudence that deals with the interpretation of what is now s. 231(5). The Crown placed particular emphasis on R. v. Kirkness, 1990 57 (SCC), [1990] 3 S.C.R. 74, in arguing that there was no special causation requirement for s. 214(5).
Effect of Kirkness
In R. v. Kirkness, two accused men broke into the home of an elderly woman with the aim of burglarizing it. Kirkness' co-accused sexually assaulted and eventually killed the victim. Both were charged with first degree murder on the grounds that the killing was planned and deliberate. Kirkness was acquitted while his co-accused was found guilty of first degree murder. The debate over s. 214(5) arose when the Manitoba Court of Appeal set aside the acquittal and directed a new trial of Kirkness on a charge of manslaughter. They did so on the basis that the single transaction principle which was set out by this Court in R. v. Paré, 1987 1 (SCC), [1987] 2 S.C.R. 618, was pertinent in considering Kirkness' potential liability for manslaughter and that the jury should have been instructed in that manner.
In this Court, the acquittal of Kirkness was restored and it was held that the transaction based analysis set out in Paré was limited to assessing liability under s. 214(5) and had no application to the offence of manslaughter. In the course of the reasons I stated at pp. 86-87:
The decision in Paré reflects and clarifies that policy decision by concluding that where death ensues as part of a single ongoing transaction in the course of committing crimes involving domination, it will be considered to be first degree murder. The single transaction analysis utilized in Paré requires that the Crown first establish that the accused committed the underlying offence and that he or she also committed the murder. Similarly for party offences, the Crown must first establish that the accused was a party to both offences before s. 214(5) could be applied. It is only when this has been accomplished that the court may then consider whether the two offences were sufficiently closely connected in time to allow the murder to be classified as first degree. This approach cannot be utilized in the context of manslaughter because there is no classification of that offence contained in the Code. It follows that the Paré analysis should be restricted to the classification of murder. [Emphasis added.]
The Crown has argued that this portion of the reasons indicates that an accused may be found guilty of first degree murder in all cases where he was a party in any way to both the murder and the underlying offence. I cannot accept that contention. Kirkness was primarily concerned with the meaning to be given to the words "while committing" in s. 214(5) and what application they might have when the charge was manslaughter and not murder. The case was not concerned with the phrase "caused by that person". Indeed no argument was submitted as to the meaning of that phrase. Thus the decision in Kirkness is not of assistance in resolving the issue presented in this case.
Earlier Cases
In R. v. Black and Mackie, 1965 241 (ON CA), [1966] 3 C.C.C. 187 (Ont. C.A.), two accused were charged with capital murder. They robbed the victim and then pushed him down an embankment into a creek where he drowned. The section of the Code then in force, s. 202a(2)(b)(i), added by S.C. 1960-61, c. 44, s. 1, provided that an accused could be found guilty of capital murder where he "by his own act caused or assisted in causing the bodily harm from which the death ensued". The trial judge instructed the jury that if either accused had caused bodily harm, then both could be liable for capital murder through the operation of the party provisions contained in s. 21.
In the Court of Appeal, the majority were concerned that a person who had no subjective intention to kill the victim could nonetheless be convicted of capital murder under the combined effect of the murder and party sections of the Criminal Code. This they considered unacceptable. By the use of the party section, particularly s. 21(2), it was possible to convict an accused person of murder based upon objective foresight alone. It is not surprising therefore that the dangers involved in the use of s. 21(2) were specifically alluded to in R. v. Black and Mackie as a basis for justifying a restrictive approach to causation in capital murder. As a result, the majority of the court concluded that capital murder should not have been left with a jury. On the other hand, the minority would have found both accused guilty of capital murder because they had both assaulted the victim and were thus both principal actors in his death.
This same concern expressed by the majority about the possible inclusion of parties within the first degree murder provision was referred to by Anderson J. in R. v. Gourgon and Knowles (No. 1) (1979), 1979 4423 (BC SC), 9 C.R. (3d) 313 (B.C.S.C), at p. 329, on a motion for a directed verdict. The jury acquittal was later confirmed by the Court of Appeal (1979), 1979 4436 (BC CA), 19 C.R. (3d) 272.
In R. v. Dollan and Newstead (1980), 1980 2847 (ON SC), 53 C.C.C. (2d) 146 (Ont. H.C.), Newstead, a woman, knocked on the door and gained access to a house. Once inside, her accomplice Dollan shot the two occupants, mortally wounding one of them. The victims and their grandchildren were tied up by Newstead on instructions from Dollan. They both then left the house. At a pre-trial motion, DuPont J. ruled that in so far as Newstead was concerned, the first degree murder section could not be left to the jury. He adopted a test of physical causation and held that the party provisions did not apply because the deletion of the words "assisted in causing" in s. 214(5) indicated that secondary parties could not come within the scope of the section. His position was confirmed by the Court of Appeal. See (1982), 1982 2006 (ON CA), 65 C.C.C. (2d) 240 (Ont. C.A.).
The same reasoning was adopted in R. v. Woods and Gruener (1980), 1980 2928 (ON CA), 57 C.C.C. (2d) 220 (Ont. C.A.). In view of the possibility of convicting persons of first degree murder although they lacked any intent to kill, it is not surprising that there was an appropriate limitation of the reach of the section. See also other Ontario decisions of the time: R. v. Munro and Munro (1983), 1983 3542 (ON CA), 8 C.C.C. (3d) 260, and R. v. McGill (1986), 15 O.A.C. 266.
Many if not all of the concerns expressed by the courts in the earlier cases have been eliminated by recent decisions of this Court. The concern that first degree murder should not apply to s. 21(2) parties to a murder who lacked any subjective foresight of death has been resolved by R. v. Rodney, 1990 81 (SCC), [1990] 2 S.C.R. 687, and R. v. Logan, 1990 84 (SCC), [1990] 2 S.C.R. 731. The unlawful object and felony murder provisions, another source of concern, were struck down or rendered moribund in R. v. Martineau, 1990 80 (SCC), [1990] 2 S.C.R. 633. Thus the danger of an accused's becoming subject to a first degree murder sentence in the absence of subjective blameworthiness has effectively disappeared. The earlier cases were primarily concerned with the harshness that would arise from applying a broad causation rule to parties to an offence. In my view, that cause for concern no longer exists.
The question which does arise is precisely what causal effect is required by the phrase "death . . . caused by that person." I think with respect, that the physically caused test advocated by the majority of the Court of Appeal is too restrictive. It would tend to raise the same impractical distinctions that Wilson J. warned against in R. v. Paré, supra, at p. 631, when she considered the phrase "while committing". She held that no sensible distinction existed between an accused who strangled his or her victim during the act of sexual assault and an accused who sexually assaulted and then shortly thereafter strangled the victim. In the case at bar, it would be unreasonable to suggest that, in order to be liable under s. 214(5), Harbottle must have pathologically caused the death of the victim by pulling one end of the brassiere strap while his co-accused pulled the other. I find it impossible to distinguish between the blameworthiness of an accused who holds the victim's legs thus allowing his co-accused to strangle her and the accused who performs the act of strangulation.
Object of the Section
In order to provide the appropriate distinctions pertaining to causation that must exist for the different homicide offences, it is necessary to examine the sections in their context while taking into account their aim and object.
At the outset, it is important to remember that when s. 214(5) comes into play it is in essence a sentencing provision. First degree murder is an aggravated form of murder and not a distinct substantive offence. See R. v. Farrant, 1983 118 (SCC), [1983] 1 S.C.R. 124. It is only to be considered after the jury has concluded that the accused is guilty of murder by causing the death of the victim. An accused found guilty of second degree murder will receive a mandatory life sentence. What the jury must then determine is whether such aggravating circumstances exist that they justify ineligibility for parole for a quarter of a century. It is at this point that the requirement of causation set out in s. 214(5) comes into play. The gravity of the crime and the severity of the sentence both indicate that a substantial and high degree of blameworthiness, above and beyond that of murder, must be established in order to convict an accused of first degree murder.
Substantial Cause Test
Accordingly, I suggest a restrictive test of substantial cause should be applied under s. 214(5). That test will take into account the consequences of a conviction, the present wording of the section, its history and its aim to protect society from the most heinous murderers.
The consequences of a conviction for first degree murder and the wording of the section are such that the test of causation for s. 214(5) must be a strict one. In my view, an accused may only be convicted under the subsection if the Crown establishes that the accused has committed an act or series of acts which are of such a* nature that they must be regarded as a substantial and integral cause of the death. A case which considered and applied a substantial cause test from Australia is R. v. Hallett, [1969] S.A.S.R. 141 (S.C. in banco). In that case, the victim was left beaten and unconscious by the sea and was drowned by the incoming tide. The court formulated the following test of causation, at p. 149, which I find apposite:
The question to be asked is whether an act or series of acts (in exceptional cases an omission or series of omissions) consciously performed by the accused is or are so connected with the event that it or they must be regarded as having a sufficiently substantial causal effect which subsisted up to the happening of the event, without being spent or without being in the eyes of the law sufficiently interrupted by some other act or event.
The substantial causation test requires that the accused play a very active role -- usually a physical role -- in the killing. Under s. 214(5), the actions of the accused must form an essential, substantial and integral part of the killing of the victim. Obviously, this requirement is much higher than that described in Smithers v. The Queen, 1977 7 (SCC), [1978] 1 S.C.R. 506, which dealt with the offence of manslaughter. There it was held at p. 519 that sufficient causation existed where the actions of the accused were "a contributing cause of death, outside the de minimis range". That case demonstrates the distinctions in the degree of causation required for the different homicide offences.
The majority of the Court of Appeal below expressed the view that the acts of the accused must physically result in death. In most cases, to cause physically the death of the victim will undoubtedly be required to obtain a conviction under s. 214(5). However, while the intervening act of another will often mean that the accused is no longer the substantial cause of the death under s. 214(5), there will be instances where an accused could well be the substantial cause of the death without physically causing it. For example, if one accused with intent to kill locked the victim in a cupboard while the other set fire to that cupboard, then the accused who confined the victim might be found to have caused the death of the victim pursuant to the provisions of s. 214(5). Similarly an accused who fought off rescuers in order to allow his accomplice to complete the strangulation of the victim might also be found to have been a substantial cause of the death.
Therefore, an accused may be found guilty of first degree murder pursuant to s. 214(5) if the Crown has established beyond a reasonable doubt that:
(1) the accused was guilty of the underlying crime of domination or of attempting to commit that crime;
(2) the accused was guilty of the murder of the victim;
(3) the accused participated in the murder in such a manner that he was a substantial cause of the death of the victim;
(4) there was no intervening act of another which resulted in the accused no longer being substantially connected to the death of the victim; and
(5) the crimes of domination and murder were part of the same transaction; that is to say, the death was caused while committing the offence of domination as part of the same series of events.
It would be appropriate to charge a jury in those terms.
Application of these Principles to this Case
The facts of this case clearly established that Harbottle was a substantial and an integral cause of the death of Elaine Bown. It will be remembered that Ross, who actually strangled the victim, weighed only 130 lb. and was about 5' 7" in height. Elaine Bown, although three inches shorter, was 10 lb. heavier. There was no indication in her blood of any alcohol or drugs so that it can be inferred that she was not impaired. Rather the bruising on her neck indicates she struggled valiantly. Indeed, it is apparent that even when her hands were bound, she successfully resisted the attempts of both Ross and Harbottle to cut her wrists. There is every reason to believe that, had it not been for Harbottle's holding her legs, she would have been able to resist the attempts to strangle her. In those circumstances, it is difficult to believe that Ross could have strangled her in the absence of the assistance of Harbottle.
The evidence adduced clearly established all the elements of the test. The appellant was guilty (1) of at least one enumerated offence of domination (forcible confinement); (2) he participated in and was found guilty of the murder; (3) his participation in the murder was such that he was a substantial and integral cause of the death of the victim; (4) there was no intervening act of another which resulted in the accused's no longer being substantially connected to the death of the victim; and (5) the crimes of domination and murder were part of the same series of acts or transaction.
Further, after a careful review of the charge, I would agree with the majority of the Court of Appeal that the directions to the jury by the trial judge were eminently fair and adequately covered all the requisite elements of the offences of domination, murder and first degree murder.
Disposition
As the Court indicated at the conclusion of the hearing, the appeal must be dismissed.
Appeal dismissed.
Solicitors for the appellant: Ruby & Edwardh, Toronto, and Burstein & Paine, Toronto.
Solicitor for the respondent: The Attorney General for Ontario, Toronto.
* See Erratum [2004] 3 S.C.R. iv