R. v. Nette, [2001] 3 S.C.R. 488, 2001 SCC 78

Daniel Matthew Nette Appellant

v.

Her Majesty The Queen Respondent

and

The Attorney General for Ontario Intervener

Indexed as: R. v. Nette

Neutral citation: 2001 SCC 78.

File No.: 27669.

2001: January 16; 2001: November 15.

Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for british columbia

Criminal law -- Second degree murder -- Causation -- Charge to jury – Appropriate standard of causation for second degree murder – How applicable standard should be explained to jury -- Whether trial judge misdirected jury on standard of causation.

Criminal law -- Murder -- Causation -- Whether same standard of causation applicable to all homicide offences – Whether “substantial cause” standard applies only to first degree murder under s. 231(5) of Criminal Code.

A 95-year-old widow who lived alone was robbed and left bound with electrical wire on her bed with a garment around her head and neck. Sometime during the next 48 hours, she died from asphyxiation. During an RCMP undercover operation, the accused told a police officer that he had been involved in the robbery and death. The accused was charged with first degree murder under s. 231(5) of the Criminal Code -- murder while committing the offence of unlawful confinement -- and tried before a judge and jury. At trial, he claimed that he had fabricated the admission. He testified that he had gone alone to the victim’s house only with intent to break and enter, that the back door to the house was open as though someone already had broken into the home, and that he left after finding the victim already dead in her bedroom. The trial judge charged the jury on manslaughter, second degree murder and first degree murder under s. 231(5) of the Code. In response to a request from the jury that he clarify the elements of first degree murder and the “substantial cause” test, the trial judge essentially reiterated his charge. Overall, he charged that the standard of causation for manslaughter and second degree murder was that the accused’s actions must have been “more than a trivial cause” of the victim’s death while, for first degree murder under s. 231(5), the accused’s actions also must have been a “substantial cause” of her death. On two occasions, however, once in the main charge and once in the re-charge, he described the standard of causation for second degree murder as “the slight or trivial cause necessary to find second degree murder” instead of “more than a trivial cause”. The jury found the accused guilty of second degree murder and the Court of Appeal upheld that verdict. The only ground of appeal both before the Court of Appeal and this Court concerned the test of causation applicable to second degree murder.

Held: The appeal should be dismissed. The jury’s verdict of second degree murder is upheld.

Per Iacobucci, Major, Binnie, Arbour and LeBel JJ.: Responsibility for causing a result, in this case death, must be determined both in fact and in law. Factual causation concerns how the victim came to death in a medical, mechanical, or physical sense and the accused’s contribution. Legal causation concerns the accused’s responsibility in law and is informed by legal considerations such as the wording of the offence and principles of interpretation. These considerations reflect fundamental principles of criminal justice. The inquiry to find legal causation can be expressed as determining whether the result can fairly be said to be imputable to the accused. Although the jury does not engage in a two-part analysis of causation, the charge to the jury should convey the requisite degree of factual and legal causation. The starting point is usually the unlawful act itself. It will rarely be necessary to charge the jury on the standard of causation if the requisite mental element for the offence exists because the mens rea requirement usually resolves concerns about causation. The law of causation is in large part judicially developed but it is also expressed in the Criminal Code. Where a factual situation does not fall within a statutory rule of causation, the criminal common law applies. The civil law of causation is of limited assistance in elucidating the criminal standard of causation.

It is not appropriate in jury charges to formulate a separate causation test for second degree murder. The causation standard expressed in Smithers is still valid and applicable to all forms of homicide. The standard, however, need not be expressed as “a contributing cause of death, outside the de minimis range”. The concept of causation and the terminology used to express that concept are distinct. Latin expressions or the formulation of the test in the negative are not useful means of conveying an abstract idea. It is preferable to use positive terms such as “significant contributing cause” rather than “not a trivial cause” or “not insignificant”. Also, because causation issues are case-specific and fact-driven, trial judges should have discretion to choose terminology relevant to the circumstances of the case. In the case of first degree murder under s. 231(5) of the Code, a jury must also consider the additional Harbottle “a substantial causation” standard but only after finding the accused guilty of murder. This standard, which indicates a higher degree of legal causation, comes into play at the stage of deciding whether the accused’s degree of blameworthiness warrants the increased penalty and stigma of first degree murder. Such a high degree of blameworthiness would only be established where the actions of the accused were found to be an essential, substantial and integral part of the killing of the victim. The Harbottle standard stresses the increased degree of participation required before an accused may be convicted of first degree murder under s. 231(5).

The difficulty in establishing a single, conclusive medical cause of death does not lead to the legal conclusion that there were multiple operative causes of death. In a homicide trial, the question is not who or what caused the victim’s death but whether the accused caused the death. The fact that other persons or factors may have contributed to the result may or may not be legally significant in the trial of the one accused charged with the offence. It will be significant, and exculpatory, if independent factors, occurring before or after the acts or omissions of the accused, legally sever the link that ties him to the prohibited result. This case involves neither multiple causes nor intervening causes nor a thin-skull victim so it was unnecessary to instruct the jury on the law of causation beyond stating the need to find that the accused caused the victim’s death. However, in relation to the charge of first degree murder under s. 231(5) of the Code, it was necessary for the trial judge to instruct the jury in accordance with Harbottle.

The trial judge accurately stated the correct standard of causation for second degree murder. Although, on two occasions, he misspoke in describing the appropriate test, by contrasting the high standard of causation for first degree murder with “the slight or trivial cause necessary to find second degree murder”, these errors would not have caused the jury to believe that the applicable standard of causation for second degree murder was lower than the Smithers standard of “more than a trivial cause”. Given that the jury found the accused guilty of second degree murder, it must be concluded that the jury found that the accused had the requisite intent for the offence of murder, namely subjective foresight of death. The jury’s conclusion with respect to intent could not have been affected by the instructions on causation. No reasonable jury could have had any doubt about whether the accused’s actions constituted a significant, operative cause of the victim’s death. Whatever the jury’s reasons for acquitting the accused of first degree murder, the jury’s verdict of second degree murder is unimpeachable.

Per McLachlin C.J. and L’Heureux-Dubé, Gonthier and Bastarache JJ.: The test for causation for culpable homicide set out in Smithers should not be changed from “a contributing cause of death, outside the de minimis range” into “a significant contributing cause”. The current language is the correct formulation and should be used to express the standard of causation to the jury for all homicide offences. To avoid a Latin expression, an appropriate version would be “a contributing cause [of death] that is not trivial or insignificant”. The terms “not trivial” and “not insignificant” accurately express a standard that has withstood the test of time as an authoritative test of causation. There is no legitimate reasons to reformulate it.

There is a meaningful difference between “a contributing cause [of death] that is not trivial or insignificant” and a “significant contributing cause”. The suggested change in terminology drastically changes the substance of the causation test and ignores the reason for using a double negative. A “significant contributing cause” standard calls for a more direct causal relationship than the “not insignificant” or “not trivial” test, thus raising the threshold of causation for culpable homicide from where it currently stands. The word “significant” implies an elevated contribution and is not equivalent to “not insignificant”. It is crucial to use exact language because language is the medium through which law finds expression and language is an outward sign of our legal reasoning. Trial judges should continue to use the current language of “a contributing cause [of death] that is not trivial or insignificant” for all homicide offences.

Cases Cited

By Arbour J.

Explained: Smithers v. The Queen, 1977 CanLII 7 (SCC), [1978] 1 S.C.R. 506; R. v. Harbottle, 1993 CanLII 71 (SCC), [1993] 3 S.C.R. 306; referred to: R. v. Farrant, 1983 CanLII 118 (SCC), [1983] 1 S.C.R. 124; R. v. Cribbin (1994), 1994 CanLII 391 (ON CA), 17 O.R. (3d) 548; R. v. Meiler (1999), 1999 CanLII 3728 (ON CA), 136 C.C.C. (3d) 11; Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486; R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636; R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326; R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3; R. v. Droste, 1984 CanLII 68 (SCC), [1984] 1 S.C.R. 208; R. v. Paré, 1987 CanLII 1 (SCC), [1987] 2 S.C.R. 618; R. v. Arkell, 1990 CanLII 82 (SCC), [1990] 2 S.C.R. 695; R. v. Luxton, 1990 CanLII 83 (SCC), [1990] 2 S.C.R. 711; British Columbia Electric Railway Co. v. Loach, 1915 CanLII 437 (UK JCPC), [1916] A.C. 719; R. v. Pagett (1983), 76 Cr. App. R. 279; R. v. Hallett, [1969] S.A.S.R. 141; Royall v. R. (1991), 100 A.L.R. 669; R. v. Smith (1959), 43 Cr. App. R. 121; R. v. Cheshire, [1991] 3 All E.R. 670; R. v. Hennigan, [1971] 3 All E.R. 133; Dulieu v. White, [1901] 2 K.B. 669; Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458.

By L’Heureux-Dubé J.

Referred to: Smithers v. The Queen, 1977 CanLII 7 (SCC), [1978] 1 S.C.R. 506; Deeks v. Wells, 1931 CanLII 157 (ON CA), [1931] O.R. 818.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1985, c. C-46, ss. 21, 81, 222, 225, 226, 229, 230, 231 (5) [am. c. 27 (1st Supp.), s. 40(2) (Sch. I, item 3)], (6) [ad. 1997, c. 16, s. 3], (6.1) [idem, c. 23, s. 8], 264.

Authors Cited

Editorial, “Semantics and the threshold test for imputable causation” (2000), 24 Crim. L.J. 73.

Klinck, Dennis R. The Word of the Law. Ottawa: Carleton University Press, 1992.

Presser, Jill. “All for a Good Cause: The Need for Overhaul of the Smithers Test of Causation” (1994), 28 C.R. (4th) 178.

Stuart, Don. Canadian Criminal Law: A Treatise, 3rd ed. Scarborough: Carswell, 1995.

Tiersma, Peter M. Legal Language. Chicago: University of Chicago Press, 1999.

Weissman, Gary A. “Legal Esoterica: Reality is shaped by the language we use: ‘Jack and the Beanstalk’ as told by a judge, a psychiatrist, and an economist” (1986), 29 Advocate (Idaho) 22.

Williams, Glanville. Textbook of Criminal Law, 2nd ed. London: Stevens, 1983.

Yeo, Stanley. “Blamable Causation” (2000), 24 Crim. L.J. 144.

Yeo, Stanley. “Giving Substance to Legal Causation” (2000), 29 C.R. (5th) 215.

APPEAL from a judgment of the British Columbia Court of Appeal (1999), 131 B.C.A.C. 104, 214 W.A.C. 104, 141 C.C.C. (3d) 130, 29 C.R. (5th) 195, [1999] B.C.J. No. 2836 (QL), 1999 BCCA 743, upholding the accused’s conviction for second degree murder. Appeal dismissed.

Gil D. McKinnon, Q.C., for the appellant.

Richard C. C. Peck, Q.C., and Nikos Harris, for the respondent.

Lucy Cecchetto, for the intervener the Attorney General for Ontario.

The reasons of McLachlin C.J. and L’Heureux-Dubé, Gonthier and Bastarache were delivered by

[1] L’Heureux-Dubé J. — I had the benefit of reading my colleague Madam Justice Arbour’s reasons and while I concur in the result she reaches, I do not agree with her suggestion to rephrase the standard of causation for culpable homicide set out by this Court in Smithers v. The Queen, 1977 CanLII 7 (SCC), [1978] 1 S.C.R. 506. Writing for the Court, Dickson J. (as he then was) articulated the causation test in the following manner (at p. 519):

The second sub-question raised is whether there was evidence on the basis of which the jury was entitled to find that it had been established beyond a reasonable doubt that the kick caused the death. In answer to this question it may shortly be said that there was a very substantial body of evidence, both expert and lay, before the jury indicating that the kick was at least a contributing cause of death, outside the de minimis range, and that is all that the Crown was required to establish. [Emphasis added.]

[2] To avoid resorting to the Latin expression, Lambert J.A., in the Court of Appeal’s ruling in this case ((1999), 1999 BCCA 743, 141 C.C.C. (3d) 130), suggested an English version that I believe adequately reflects Smithers’ beyond de minimis standard (at para. 29):

In the Smithers case the relevant causal standard is described in the words “a contributing cause beyond de minimis”. If one were to avoid the Latin, which a jury may find confusing, the Smithers standard is “a contributing cause that is not trivial or insignificant”. See Crimji 6.45, para.17. [Emphasis added.]

[3] In her reasons, my colleague also refers to the English translation of the Smithers test when she writes (at para. 54): “Since Smithers, the terminology of ‘beyond de minimis’ or ‘more than a trivial cause’ has been used interchangeably with “outside the de minimis range” to charge juries as to the relevant standard of causation for all homicide offences, be it manslaughter or murder.”

[4] The terms “not trivial” and “not insignificant” are accurate and do not alter the Smithers standard which, it is worth noting, has withstood the test of time. As one author points out, Smithers is “the generally authoritative test of causation for all criminal offences” (J. Presser, “All for a Good Cause: The Need for Overhaul of the Smithers Test of Causation” (1994), 28 C.R. (4th) 178, at p. 178). In that regard, my colleague also recognizes that the Smithers causation standard is valid and applicable to all forms of homicide (at paras. 85 and 88):

As discussed above, I conclude that the test of causation is the same for all homicide offences and that it is not appropriate to apply a different standard of causation to the offences of manslaughter and murder. The applicable standard of causation has traditionally been articulated in this country on the basis of the language used in Smithers that the accused must be a cause of the death beyond de minimis. This standard has not been overruled in any subsequent decisions of this Court, including Harbottle.

There is only one standard of causation for homicide offences, including second degree murder. That standard may be expressed using different terminology, but it remains the standard expressed by this Court in the case of Smithers, supra. [Emphasis added.]

[5] Having said so, my colleague suggests reformulating the Smithers beyond de minimis test, i.e., “a contributing cause [of death] that is not trivial or insignificant” in the language of a “significant contributing cause”. She asserts that (at para. 70):

There is a semantic debate as to whether “not insignificant” expresses a degree of causation lower than “significant”. This illustrates the difficulty in attempting to articulate nuances in this particular legal standard that are essentially meaningless.

[6] Evidently, my colleague considers that this rephrasing is merely a matter of semantics and, in her view, it does not alter the current test. I respectfully disagree. In my opinion, this issue is a matter of substance, not semantics. There is a meaningful difference between expressing the standard as “a contributing cause that is not trivial or insignificant” and expressing it as a “significant contributing cause”. Changing the terminology of the Smithers test in this manner would drastically change its substance. On this point, I share Professor S. Yeo’s view in his article “Giving Substance to Legal Causation” (2000), 29 C.R. (5th) 215, at p. 219:

I submit that there is a material difference between describing something as “not an insignificant cause” on the one hand, and as “a significant cause” on the other. To ignore this difference is to ignore the reason for the use of a double negative in the first place. While the former description focuses the inquiry at the lower end of the scale of degrees of causation, the latter does not invoke such a focus. Using another set of words to illustrate my argument, when Mary says that she does not dislike John, she means, at most, that she is impartial towards him rather than that she likes him.

[7] To 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. In the same vein, a substantial difference exists between the terms “not insignificant” and “significant”, and there is no doubt in my mind that to remove the double negative formulation from the Smithers causation test would effect a radical change to the law. I therefore agree with the position of both the respondent and the intervener that a “significant contributing cause” calls for a more direct causal relationship than the existing “not insignificant” or “not trivial” test, thus raising the standard from where it currently stands. As the respondent explains (see paras. 74 and 76 of the respondent’s factum):

It is further submitted that the term “significant cause” can also imply too high a causation standard. Like the term substantial, “significant” implies an elevated contribution, as the definition of the term includes “conveying information about the value of quantity . . . important, notable, consequential.” (The New Shorter Oxford Dictionary, supra at 2860); The Respondent respectfully disagrees with the analysis of Lambert J.A. in the Court of Appeal below . . . that the term significant can be equated with the term “not insignificant.” The term insignificant is defined as that which is “of no importance; trivial; trifling; contemptible.” (The New Shorter Oxford Dictionary, supra at 1379). Something that is not trivial or not trifling is not necessarily something that is important.

The imposition of a “substantial” or “significant” cause standard in a second degree murder case would permit a trier of fact to find that an accused did intend to cause the death of the victim, and that pursuant to that intent the accused contributed to the victim’s death in a manner that was not minimal, insignificant, or trivial, but then acquit the accused on the basis that the accused’s contribution could not be classified as an “important” [or “significant”] cause of death. . . . It is submitted that the wording of the standard which most accurately captures the proper broad causation threshold for second degree murder is that which instructs a jury that the accused’s conduct had to be a contributing cause of death which is more than insignificant, minimal, or trivial. [Emphasis added.]

(See also para. 55 of the intervener’s factum.)

[8] Professor Yeo, in “Blamable Causation” (2000), 24 Crim. L.J. 144, makes an interesting observation in that regard (at p. 148):

The difference between this test [of a “significant contributing cause”] and the one of “beyond the de minimis range” is clearly seen when we place the discussion in the context of the tests for factual and blamable causation. First, the prosecution will have established factual causation if the triers of fact were satisfied that the proscribed result would not have occurred but for the defendant’s conduct. As noted earlier, this “but-for” test is made out if the defendant’s conduct was found to have been a more than trivial or negligible contribution of the result. Passing this initial test renders the defendant’s conduct a “contributing” cause to the result. The prosecution must then proceed to establish blamable causation by persuading the triers of fact that the defendant’s conduct was not just a contributing cause but that it “significantly” contributed to the result. [Emphasis added.]

[9] Accordingly, I find that recasting the Smithers “beyond de minimis” test in the language of a “significant contributing cause” is unwarranted because it raises the threshold of causation for culpable homicide without any reasons for doing so and none, of course, is given since my colleague indicates that the proposed reformulation does not modify the Smithers standard.

[10] Words have a meaning that should be given to them and different words often convey very different standards to the jury. In my view, describing a contributing cause as having a “significant” impact attaches a greater degree of influence or importance to it than do the words “not insignificant”. As a recent editorial of the Criminal Law Journal observes: “Semantics, popular usage of words and expressions, and common sense all have their respective critical roles to play in the determination of causation in the criminal law” (“Semantics and the threshold test for imputable causation” (2000), 24 Crim. L.J. 73, at pp. 74-75).

[11] Moreover, it is worth emphasizing that language is the medium through which the law finds expression. As P. M. Tiersma, an American law professor and author, duly points out in Legal Language (1999), at p. 1:

Our law is a law of words. Although there are several major sources of law in the Anglo-American tradition, all consist of words. Morality or custom may be embedded in human behavior, but law -- virtually by definition -- comes into being through language. Thus, the legal profession focuses intensely on the words that constitute the law, whether in the form of statutes, regulations, or judicial opinions.

[12] Language is the outward sign of our legal reasoning. The words we use provide a filter through which we view and acknowledge legal concepts (see G. A. Weissman, “Legal Esoterica: Reality is shaped by the language we use: ‘Jack and the Beanstalk’ as told by a judge, a psychiatrist, and an economist” (1986), 29 Advocate (Idaho) 22). It is therefore crucial to our analysis that we use exact language. For the introduction of his book The Word of the Law (1992), D. R. Klinck, a law professor at McGill University, finds inspiration in the teaching of Chinese philosopher Confucius: “When asked what he would do first if invited to administer a country, Confucius replied: ‘It would certainly be to correct language’” (p. 8). Confucius added: “If language be not in accordance with the truth of things, affairs cannot be carried on to success”. In Deeks v. Wells, 1931 CanLII 157 (ON CA), [1931] O.R. 818, the Ontario Supreme Court, Appellate Division held that (at pp. 843-44):

Before leaving this branch of the inquiry, it may be well to mention a curious fallacy which ran through much of the plaintiff's argument and of which there is an occasional glimpse in the evidence -- it is made a matter of suspicion that Wells does not follow the terminology of the authorities he says he consulted. One would have thought it most natural for a literary man, writing a book for popular perusal, to clothe in his own language the historical facts taught him by his authorities rather than to use the terminology of the expert original. Where we have a subject like law -- in which a statement is to be accepted because of the position of the person who makes it, his precise words may be and in many cases are of importance and should be given verbatim, but this is not the case where the statement is one of a fact. [Emphasis added.]

[13] As I have mentioned earlier, our reasoning is dictated by the specific words that are used to articulate a legal test or standard. Professor Klinck, supra, writes at p. 15: “A common example of the obvious continuity of reality is colour: the colours of the spectrum shade into each other; different languages draw lines at different places.”

[14] In conclusion, I reiterate that the causation test in Smithers remains the law and to rephrase it in the language of a “significant contributing cause”, as my colleague suggests, would draw the line at a different place, thus drastically changing the law. I have found no legitimate reason to reformulate the Smithers test, rather it is my opinion that such alteration should be strenuously proscribed since it will elevate the threshold of causation. As a result, I consider the current language of “a contributing cause [of death] that is not trivial or insignificant” to be the correct formulation that trial judges should use when expressing to the jury the standard of causation for all homicide offences.

[15] I would dismiss the appeal.

The judgment of Iacobucci, Major, Binnie, Arbour and LeBel JJ. was delivered by

Arbour J. --

I. Introduction

[16] The present appeal raises the issue of causation in second degree murder. It requires a determination of the threshold test of causation that must be met before an accused may be held legally responsible for causing a victim’s death in a charge of second degree murder. We must also examine how the applicable standard of causation should be conveyed to the jury.

II. Factual Background

[17] On Monday, August 21, 1995, Mrs. Clara Loski, a 95-year-old widow who lived alone in her house in Kelowna, British Columbia, was found dead in her bedroom. Her house had been robbed. Mrs. Loski was bound with electrical wire in a way that is referred to colloquially as “hog-tying”. Her hands were bound behind her back, her legs were brought upwards behind her back and tied, and her hands and feet were bound together. A red garment was tied around her head and neck and entrapped her chin. This garment formed a moderately tight ligature around her neck, but did not obstruct her nose or mouth.

[18] One of Mrs. Loski’s neighbours, Deanna Taylor, testified that she was standing in her backyard smoking on the afternoon of Friday, August 18, 1995 when she heard Mrs. Loski’s door close and saw two male Caucasian youths leave through Mrs. Loski’s back gate and run down the alley.

[19] Some 24 to 48 hours after Mrs. Loski was robbed and left hog-tied on her bed, she died. At some point she had fallen from the bed to the floor. The Crown’s medical expert, Dr. Roy, was of the opinion that the cause of death was asphyxiation due to upper airway obstruction.

[20] The RCMP mounted an undercover operation with the appellant Nette as a target. In the course of this investigation, the appellant was induced to tell an undercover police officer, who was posing as a member of a criminal organization, about his involvement in the robbery and death of Mrs. Loski. This admission was recorded by the undercover officer and was put in evidence at trial.

[21] At trial, the appellant testified in his own defence. He stated that he went to Mrs. Loski’s house alone on Saturday, August 19, 1995 just after midnight with the intention of breaking and entering her house. He testified that he knocked on the back door and it swung open on its own. He stated that it looked as if someone had already broken into the home. He testified that he found Mrs. Loski already dead in her bedroom and then left the home. With respect to the intercepted conversations obtained through the undercover operation, the appellant testified that he had made up the story about robbing and tying up Mrs. Loski in order to impress the undercover officer.

[22] The only medical evidence at trial on the issue of cause of death was the evidence of Dr. Roy, the forensic pathologist who investigated Mrs. Loski’s death and who testified for the Crown. Dr. Roy concluded that Mrs. Loski died as a result of asphyxiation due to an upper airway obstruction. Dr. Roy could not isolate one factor from among the circumstances of Mrs. Loski’s death and state that it alone caused her death by asphyxiation. In his view, a number of factors contributed to the asphyxial process, in particular, her hog-tied position, the ligature around her neck, as well as her age and corresponding lack of muscle tone. In cross-examination, Dr. Roy agreed that other factors, including Mrs. Loski’s congestive heart failure and asthma may possibly have speeded up the process of asphyxiation.

[23] The appellant was charged with first degree murder on the basis that he had committed murder while committing the offence of unlawfully confining Mrs. Loski. The Crown’s position at trial was that the act of causing death and the acts comprising the offence of unlawful confinement all formed part of one continuous sequence of events making up a single transaction, and that the appellant was therefore guilty of first degree murder pursuant to s. 231(5) of the Criminal Code, R.S.C. 1985, c. C-46. The appellant was tried before a judge and jury. The jury returned a verdict of second degree murder and the Court of Appeal dismissed the appellant’s appeal from that verdict. The only ground of appeal both before the Court of Appeal and before us concerns the test of causation applicable to second degree murder.

III. Relevant Statutory Provisions

[24] Criminal Code, R.S.C. 1985, c. C-46

222. (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

(2) Homicide is culpable or not culpable.

(3) Homicide that is not culpable is not an offence.

(4) Culpable homicide is murder or manslaughter or infanticide.

(5) A person commits culpable homicide when he causes the death of a human being,

(a) by means of an unlawful act;

(b) by criminal negligence;

(c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or

(d) by wilfully frightening that human being, in the case of a child or sick person.

229. Culpable homicide is murder

(a) where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;

(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or

(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.

231. (1) Murder is first degree murder or second degree murder.

(2) Murder is first degree murder when it is planned and deliberate.

(3) Without limiting the generality of subsection (2), 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 another person to do any act causing or assisting in causing that death.

(4) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the victim is

(a) a police officer, police constable, constable, sheriff, deputy sheriff, sheriff's officer or other person employed for the preservation and maintenance of the public peace, acting in the course of his duties;

(b) a warden, deputy warden, instructor, keeper, jailer, guard or other officer or a permanent employee of a prison, acting in the course of his duties; or

(c) a person working in a prison with the permission of the prison authorities and acting in the course of his work therein.

(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:

(a) section 76 (hijacking an aircraft);

(b) section 271 (sexual assault);

(c) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm);

(d) section 273 (aggravated sexual assault);

(e) section 279 (kidnapping and forcible confinement); or

(f) section 279.1 (hostage taking).

(6) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the death is caused by that person while committing or attempting to commit an offence under section 264 and the person committing that offence intended to cause the person murdered to fear for the safety of the person murdered or the safety of anyone known to the person murdered.

(6.1) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when the death is caused while committing or attempting to commit an offence under section 81 for the benefit of, at the direction of or in association with a criminal organization.

(7) All murder that is not first degree murder is second degree murder.

IV. Judgments Below

A. British Columbia Supreme Court

[25] The appellant was tried before a judge and jury. Wilkinson J., who presided over the trial, completed his charge to the jury on March 5, 1998. Dealing with the causation issue in relation to second degree murder, Wilkinson J. explained causation as follows:

The third element is that the accused must have caused the death. In connection with this element you must satisfy yourselves that the accused caused the death in two separate senses. First, are you satisfied beyond a reasonable doubt that the death of Mrs. Loski was caused by the acts of the accused Nette, by Mr. Quesnel, or both of them, rather than her death being caused by some other matter?

In this connection I must tell you that the law provides that as long as some action of the accused or a joint action of the two accused pursuant to a common intention contributed to her death and was more than a trivial cause thereof, as long as some action of theirs contributed to her death and was more than a trivial cause thereof, he may be found, for purposes of murder and manslaughter, to have caused her death notwithstanding that there were other causes involved for which he was or may not have been responsible.

Thus, if there was evidence that Mrs. Loski had died from causes totally unconnected with the actions of the accused he would not have caused her death, but if his or their common actions were one of the causes of her death and were more than a trivial cause, you may find that he caused her death if you are satisfied of that beyond a reasonable doubt.

The second sense in which you must make a decision, and this goes back to the joint or common plan, on this element of causing death is whether you are satisfied beyond a reasonable doubt that the accused caused Mrs. Loski’s death as opposed to the question of whether Mr. Quesnel caused her death.

[26] As for causation in first degree murder, the trial judge said:

In order for the Crown to prove first degree murder under s. 231(5):

1. The Crown must prove that the accused is guilty of the murder. You will have done that if you have proceeded this far.

2. That the accused’s participation in the murder was such that his actions were a substantial cause of her death.

Now, that is a distinction from second degree murder or manslaughter for there it only had to be more than a trivial cause, not a substantial cause of death.

3. That the accused is guilty of the underlying offence of unlawful confinement.

4. That the death of the victim was caused by the accused while he was committing the offence of unlawful confinement.

A substantial and high degree of blameworthiness above and beyond that of murder must be established in order to convict a person of first degree murder. A person may only be convicted of first degree murder under Section 231(5) if the Crown establishes that the actions of that person are of such a nature that they must be regarded as a substantial and integral cause of the death. That is, of course, a much more direct and substantive cause than the slight or trivial cause necessary to find second degree murder.

The substantial cause test requires that the accused play a very active role in the killing of the victim. In most cases that will mean that the accused’s own actions physically caused the death of the victim, although there are some instances where the accused’s actions will be considered the substantial cause of death although those actions have not physically caused the death. If you get to the point of dealing with first degree murder then you must review the evidence about cause of death all over again to decide if it is proved beyond a reasonable doubt, that this higher and stricter test of causation has been met.

[27] The day after completing his charge to the jury, Wilkinson J. received a note from the jurors asking him to clarify the elements of first degree murder and the substantial cause test. In recharging the jurors on this issue, Wilkinson J. essentially reiterated what he had said about second degree murder and first degree murder in the original charge.

[28] On two occasions, once in the main charge quoted above, and once in the re-charge, Wilkinson J. misspoke in describing the applicable standard of causation for second degree murder to the jury, describing it erroneously as “the slight or trivial cause necessary to find second degree murder” instead of describing the standard as “more than a trivial cause”. Overall, however, the charge and re-charge indicated that the applicable standard of causation for manslaughter and second degree murder was that the accused’s actions must be “more than a trivial cause” of the victim’s death while, for first degree murder, there was an additional causation requirement that the accused’s actions must be a “substantial cause” of the victim’s death.

B. British Columbia Court of Appeal (1999), [1999 BCCA 743](https://www.canlii.org/en/bc/bcca/doc/1999/1999bcca743/1999bcca743.html), 141 C.C.C. (3d) 130

(1) Lambert J.A.

[29] The only issue before the Court of Appeal was the question of what standard of causation must be proved in order to support a conviction of second degree murder. Lambert J.A. concluded that the standard for legal causation set out in Smithers v. The Queen, 1977 CanLII 7 (SCC), [1978] 1 S.C.R. 506, applies to second degree murder. He concluded that the distinctions between first and second degree murder only come into play at the sentencing stage once it has been established that a murder has been committed. In support of the view that first degree murder is in essence a sentencing provision, Lambert J.A. referred to this Court’s judgment in R. v. Farrant, 1983 CanLII 118 (SCC), [1983] 1 S.C.R. 124, which was endorsed and applied in R. v. Harbottle, 1993 CanLII 71 (SCC), [1993] 3 S.C.R. 306.

[30] With regard to the causation standard of “substantial cause” set out in Harbottle, Lambert J.A. made five observations. First, Harbottle settles that the standard of causation for first degree murder under s. 231(5) (formerly s. 214(5)) of the Criminal Code is whether the acts of the accused were a “substantial cause” of the death. Second, Harbottle confirms that the jury must first find that murder has been committed before considering whether there should be a conviction for first degree murder on the basis of the substantial cause test. Third, Harbottle contrasts the Smithers causation test with the much higher Harbottle standard. Fourth, the Harbottle standard does not apply to the offence of killing a police officer or prison guard under s. 231(4) of the Code. Finally, Lambert J.A. concluded that this Court in Harbottle expressly chose not to decide the standard of causation for second degree murder since it was not necessary to do so in the context of that case. Furthermore, he found that it was implicit in Harbottle that the substantial cause test was not applicable to second degree murder and that Harbottle leaves open the question of what standard applies to second degree murder.

[31] Lambert J.A. then referred to two decisions of the Ontario Court of Appeal rendered subsequent to Harbottle which dealt squarely with the issue of the standard of causation for second degree murder. In the first case, R. v. Cribbin (1994), 1994 CanLII 391 (ON CA), 17 O.R. (3d) 548, the Court of Appeal held that the Smithers test was the appropriate standard to support a conviction of second degree murder and was essentially the same as the standard in England or Australia, although different terminology was used to express the standard. In the second case, R. v. Meiler (1999), 1999 CanLII 3728 (ON CA), 136 C.C.C. (3d) 11, the Court of Appeal also concluded that the Smithers test was the proper test for second degree murder.

[32] In describing the Smithers standard of causation, Lambert J.A. concluded that the phrase “a contributing cause that is not trivial or insignificant” (para. 29) reflected the applicable standard without resort to the use of Latin in the Smithers phrase of “beyond de minimis”. He further found that a cause that is “not insignificant” can be expressed positively as a cause that is “significant” and that it would therefore be correct to describe the Smithers standard as a “significant contributing cause”. He then compared the Smithers standard to a number of English and Australian cases, and decided that the significant contribution test used in those cases was essentially the same as the Smithers test.

[33] In support of his conclusion that the Smithers test was the applicable standard of causation for second degree murder, Lambert J.A. noted that it would be difficult to formulate a meaningful intermediate test of causation which would be less than the Harbottle standard, but more than the Smithers standard, and which could be conveyed to a jury in such a way that they could realistically apply it to the facts. As well, he concluded that the Smithers significant contributing cause test is legally sound and not inconsistent with the objectives of the criminal law in relation to moral blameworthiness for the offence of murder. He also concluded that, in addressing an issue that has not been decided by the Supreme Court of Canada, he would not depart from the decisions of the Ontario Court of Appeal unless he was convinced that they were wrongly decided or that their application would lead to a miscarriage of justice.

[34] Lambert J.A. noted that in charging the jury on the Smithers standard, the trial judge twice referred to the standard incorrectly as a “slight or trivial” cause instead of “a cause that is more than trivial”. Lambert J.A. concluded that, considered as a whole, the charge was correct and the jury could not have been misled by the two slips of the tongue.

[35] Having concluded that the trial judge charged the jury correctly on the causation standard for second degree murder, Lambert J.A. found it unnecessary to address the question of whether there was an air of reality to counsel for the appellant’s argument that it might have made a difference in the verdict if the jury had been told that the applicable causation standard was the Harbottle standard and not the Smithers standard.

(2) Braidwood J.A.

[36] Braidwood J.A. wrote brief reasons in which he concurred with Lambert J.A.’s conclusion that the trial judge did not misdirect the jury in relation to the standard of causation. In addition, Braidwood J.A. concluded that, in the circumstances of the case, there was no air of reality to the suggestion that the standard of causation on which the jury was instructed could possibly have altered the result.

(3) McEachern C.J.B.C.

[37] McEachern C.J.B.C. concurred with Lambert J.A. in the result, but for different reasons. McEachern C.J.B.C. reviewed the decisions of this Court in Farrant, supra, Smithers, supra, and Harbottle, supra, and concluded that in Harbottle this Court intended to establish a similar test of causation for both first and second degree murder. McEachern C.J.B.C. agreed with the submissions of counsel for the accused that the Harbottle test of “substantial cause” applied to both first and second degree murder. He found that the trial judge erred in telling the jury that the Smithers beyond de minimis standard applied to second degree murder.

[38] However, on the facts of the case, McEachern C.J.B.C. concluded that a conviction for second degree murder was inevitable regardless of how the standard of causation for second degree murder was conveyed to the jury. McEachern C.J.B.C. therefore concluded that the curative proviso of s. 686(1)(b)(iii) should be applied and that the appeal should be dismissed.

V. Issues

[39] The only issue on this appeal is the standard of causation for second degree murder and how the applicable standard should be explained to the jury.

VI. Analysis

A. Introduction

[40] There is no issue raised in this appeal with respect to the charge on first degree murder or manslaughter. The appellant’s only ground of appeal is the propriety of the charge on second degree murder and, specifically, the applicable standard of causation for second degree murder. The appellant’s position is that there is one standard of causation applicable to all forms of homicide and that the standard should be conveyed to the jury by using the words “substantial cause” that this Court said applied to the offence of first degree murder under s. 231(5) of the Criminal Code in Harbottle. The appellant says that the trial judge erred in effectively instructing the jury that the Smithers standard of “beyond de minimis” applied to the offence of second degree murder. Had the jurors been properly instructed on the standard of causation applicable to second degree murder, says the appellant, they might have acquitted the appellant on the second degree murder charge. The appellant therefore submits that the appeal should be allowed and a new trial ordered on the ground that the trial judge misdirected the jury on the standard of causation applicable to second degree murder.

[41] The respondent and the intervener Attorney General for Ontario submit that the applicable standard for second degree murder is the standard of “beyond de minimis” articulated in Smithers, supra. Their position is that the “substantial cause” test of causation is a higher standard of causation that only applies to the offence of first degree murder under s. 231(5) of the Criminal Code. As well, the Attorney General for Ontario submits that the higher Harbottle standard also applies to first degree murder under s. 231(6) of the Criminal Code, which uses the same terminology of “caused by that person” found in s. 231(5) in relation to murder committed in the course of criminal harassment. The respondent and intervener therefore say that the trial judge properly charged the jury on the applicable standard of causation in relation to second degree murder and that the appeal should accordingly be dismissed.

[42] While the standard of causation for second degree murder has not been raised squarely before this Court until now, it was before the Ontario Court of Appeal in Cribbin, supra, and Meiler, supra. In both of these cases, the Smithers standard of “beyond de minimis” was expressly approved of in relation to a charge of second degree murder.

B. The Standard of Causation for Homicide Offences

[43] The parties and intervener on this appeal characterize the decision required of this Court in the present case as a choice between the terminology of “beyond de minimis” on the one hand and “substantial cause” on the other in describing the standard of causation for second degree murder to the jury. In my view, this characterization does not properly reflect the decision that is required in this case. It confuses the question of what the standard of causation for second degree murder is with the question of how the standard of causation for second degree murder should be expressed in charging the jury. In my view, these two separate questions are best dealt with sequentially.

[44] In determining whether a person can be held responsible for causing a particular result, in this case death, it must be determined whether the person caused that result both in fact and in law. Factual causation, as the term implies, is 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. Where factual causation is established, the remaining issue is legal causation.

[45] 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: see Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, at p. 513; R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636, at p. 652-53; R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, at p. 336; R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, at p. 17; Cribbin, supra, at p. 568. In determining whether legal causation is established, the inquiry is directed at the question of whether the accused person should be held criminally responsible for the consequences that occurred. The nature of the inquiry at the stage of determining legal causation is expressed by G. Williams as follows in his Textbook of Criminal Law (2nd ed. 1983), at pp. 381-82, quoted in Cribbin, at p. 568:

When one has settled the question of but-for causation, the further test to be applied to the but-for cause in order to qualify it for legal recognition is not a test of causation but a moral reaction. The question is whether the result can fairly be said to be imputable to the defendant. . . . If the term “cause” must be used, it can best be distinguished in this meaning as the “imputable” or “responsible” or “blamable” cause, to indicate the value-judgment involved. The word “imputable” is chosen as best representing the idea. Whereas the but-for cause can generally be demonstrated scientifically, no experiment can be devised to show that one of a number of concurring but-for causes is more substantial or important than another, or that one person who is involved in the causal chain is more blameworthy than another.

[46] In a given case, the jury does not engage in a two-part analysis of whether both factual and legal causation have been established. Rather, in the charge to the jury, the trial judge seeks to convey the requisite degree of factual and legal causation that must be found before the accused can be held criminally responsible for the victim’s death.

[47] While causation is a distinct issue from mens rea, the proper standard of causation expresses an element of fault that is in law sufficient, in addition to the requisite mental element, to base criminal responsibility. The starting point in the chain of causation which seeks to attribute the prohibited consequences to an act of the accused is usually an unlawful act in itself. When that unlawful act is combined with the requisite mental element for the offence charged, causation is generally not an issue. For example, in the case of murder, where an accused intends to kill a person and performs an act which causes or contributes to that person’s death, it is rare for an issue to arise as to whether the accused caused the victim’s death. As I discussed in Cribbin, supra, where the jury is faced with a charge of murder and is satisfied that the accused intended to kill or intended to cause bodily harm that he knew was likely to cause death and was reckless as to whether death occurred, it will rarely be necessary for the trial judge to charge the jury on the standard of causation. In such a case, the mens rea requirement generally resolves any concerns about causation. It would be rare in a murder case where the intention to kill or to cause bodily harm likely to cause death is proven for the accused to be able to raise a doubt that, while he intended the result that occurred, he did not cause the intended result. Where it is established that the accused had the subjective foresight of death or serious bodily harm likely to cause death required to sustain a murder conviction, as opposed to the lower manslaughter requirement of objective foreseeability of serious bodily harm, it would be unusual for an issue of causation to arise. Assuming a case arose where intention was established but causation was not proven, a proper verdict might be attempted murder: Cribbin, at p. 564.

[48] The law of causation is in large part judicially developed, but is also expressed, directly or indirectly, in provisions of the Criminal Code. For example, s. 225 of the Code provides that where a person causes bodily injury that is in itself dangerous and from which death results, that person causes the death notwithstanding that the immediate cause of death is proper or improper treatment. Similarly, ss. 222(5)(c) and 222(5)(d) provide that a person commits culpable homicide where he causes the death of a person by causing that person, by threats, fear of violence or by deception, to do anything that causes his death or by wilfully frightening a child or sick person. These statutory provisions and others like them in the Code preempt any speculation as to whether the act of the accused would be seen as too remote to have caused the result alleged, or whether the triggering of a chain of events was then interrupted by an intervening cause which serves to distance and exonerate the accused from any responsibility for the consequences. Where the factual situation does not fall within one of the statutory rules of causation in the Code, the common law general principles of criminal law apply to resolve any causation issues that may arise.

[49] In light of the statutory rules mentioned above, and in light of general principles of criminal responsibility, the civil law of causation is of limited assistance. The criminal law does not recognize contributory negligence, nor does it have any mechanism to apportion responsibility for the harm occasioned by criminal conduct, except as part of sentencing after sufficient causation has been found. In the same way it provides for the possibility of attributing responsibility through the law of attempt, which has no equivalent in the civil context. As a result, I do not find the appellant’s submissions relating to the civil standard of causation to be helpful in elucidating the applicable criminal standard.

[50] In determining whether an accused is guilty of first or second degree murder, the first step for the trier of fact is to determine whether murder has been committed, pursuant to ss. 229 or 230 of the Criminal Code: Farrant, supra, at p. 141. Once this has been established, the remaining question is whether the offence should be classified as first or second degree murder in accordance with the criteria set out in s. 231 of the Code, which is, in essence, a sentencing provision: Farrant, supra; R. v. Droste, 1984 CanLII 68 (SCC), [1984] 1 S.C.R. 208; R. v. Paré, 1987 CanLII 1 (SCC), [1987] 2 S.C.R. 618; R. v. Arkell, 1990 CanLII 82 (SCC), [1990] 2 S.C.R. 695; R. v. Luxton, 1990 CanLII 83 (SCC), [1990] 2 S.C.R. 711, and Harbottle, supra. Where, as here, the Crown relies on s. 231(5) of the Code, the jury must first find that the accused is guilty of murder before moving on to a consideration of whether the accused’s participation in the underlying offence and in the killing of the victim was so direct and substantial that a conviction for first degree murder is appropriate.

C. Did Harbottle Raise the Standard of Causation?

[51] This Court has previously examined the issue of causation in the homicide context in relation to manslaughter in Smithers, supra, and in relation to first degree murder under s. 231(5) of the Code in Harbottle, supra. In considering causation in relation to second degree murder in the present cause, it is helpful to first discuss the facts and legal principles set out in Smithers and Harbottle, before moving on to a consideration of whether Harbottle raised the standard of causation for first degree murder under s. 231(5) of the Code only or for homicide offences generally.

[52] In Smithers, the appellant and victim became engaged in a physical altercation following a heated and rough junior hockey game. The appellant gave the victim one or two punches to the head and then, while the victim was doubled over, gave the victim one hard, fast kick in the stomach. Within a few minutes of the kick, the victim was dead. An autopsy revealed that death had occurred from aspiration of vomit, which was an extremely rare occurrence resulting from the malfunctioning of the victim’s epiglottis. The Crown’s theory was that the kick had precipitated the vomiting and the aspiration of the vomit, and that the appellant had accordingly caused the victim’s death. The jury convicted the appellant of manslaughter and the Ontario Court of Appeal dismissed the appellant’s appeal.

[53] Two grounds of appeal were raised by the appellant before this Court in Smithers. On the first ground, the appellant argued that the trial judge had not made it clear to the jury that the act of assault must also have caused the death of the deceased. Dickson J., as he then was, writing for the Court, concluded that the issue as to the cause of death was properly and sufficiently delineated by the trial judge in charging the jury. On the second ground of appeal, the appellant argued that the Court of Appeal had erred in holding that there was evidence on which the jury could find that the kick had caused the death. This ground of appeal was also rejected by Dickson J. as follows (at p. 519):

In answer to this question it may shortly be said that there was a very substantial body of evidence, both expert and lay, before the jury indicating that the kick was at least a contributing cause of death, outside the de minimis range, and that is all that the Crown was required to establish. It is immaterial that the death was in part caused by a malfunctioning epiglottis to which malfunction the appellant may, or may not, have contributed.

[54] Since Smithers, the terminology of “beyond de minimis” or “more than a trivial cause” has been used interchangeably with “outside the de minimis range” to charge juries as to the relevant standard of causation for all homicide offences, be it manslaughter or murder. The standard of causation was more recently revisited by this Court in Harbottle, supra, in relation to a conviction of first degree murder under s. 214(5) (now s. 231(5)) of the Criminal Code. Harbottle involved the rape, forcible confinement and killing of a young woman. The appellant and his accomplice forcibly confined the victim and the appellant watched as his accomplice brutally sexually assaulted her and mutilated her with a knife. His accomplice then proceeded to kill the victim, first trying to slash her wrists and, when that proved unsuccessful, strangling her with her brassiere. To stop the victim from kicking to defend herself, the appellant held down her legs so that his accomplice could succeed in strangling her.

[55] The trial judge in Harbottle charged the jury on first degree murder on the basis of planning and premeditation and also on the basis of the murder having been committed while the victim was being sexually assaulted or forcibly confined pursuant to s. 214(5) of the Code. The issue before this Court was whether the trial judge had properly charged the jury with respect to s. 214(5). The appellant conceded that he was a party to the murder of the victim while participating in her forcible confinement or sexual assault, but he argued that the words “caused by that person” in s. 214(5) of the Code meant that he could only be found guilty of first degree murder if his actions in holding down the victim’s legs were the diagnostic cause of death. The medical evidence revealed that the diagnostic cause of death was asphyxia. Clearly the asphyxia was not directly caused by the holding of her legs but rather by the actions of the appellant’s accomplice in strangling her. The Crown argued that the words “caused by that person” in s. 214(5) did not create a causation requirement distinct from the causation required for murder generally.

[56] Cory J., writing for the Court in Harbottle, rejected the interpretations of both the Crown and defence as to the correct interpretation of the words “caused by that person” in s. 214(5) of the Code. He noted that s. 214(5) is in essence a sentencing provision, and only comes into play once the jury has found the accused guilty of murder for having caused the death of the victim. Once the jury has found the accused guilty of murder, the next step is to determine whether the accused is guilty of first degree murder under s. 214(5). In order for the accused to be found guilty under s. 214(5), with the increased stigma and sentence a conviction of first degree murder entails, Cory J. concluded that the accused must play a very active role --- usually a physical role --- in the killing and his actions must form an essential, substantial and integral part of the killing of the victim. Cory J. expressly stated that this substantial causation test under s. 214(5) is much higher than the Smithers standard of “a contributing cause of death, outside the de minimis range”: Harbottle, supra, at p. 324.

[57] The appellant submits that Harbottle was a parties case and not a causation case and that it should not be interpreted as having adopted a more stringent legal test of causation for multiple cause cases. The appellant says that there was no debate as to what caused the victim’s death in Harbottle: she was strangled by the co-accused Ross. Harbottle was therefore not a multiple cause case, in the appellant’s submission. The real issue in Harbottle, says the appellant, was whether the accused had played an active enough role in the killing that he could be liable for first degree murder. What Harbottle did, according to the appellant, was to clarify the law on parties in the context of first degree murder under s. 231(5) of the Code, not create a higher standard of causation for offences under s. 231(5). The appellant’s position is that the terminology of “substantial cause” used in Harbottle should be used in charging the jury for all homicide offences and that it does not represent a more stringent standard of causation than the “beyond de minimis” standard set out in Smithers.

[58] In oral argument, the appellant submitted that the Smithers test applies to all culpable homicide but that the Smithers test should be reformulated and “crystallized” to the specific standard of “significant” or “substantial” rather than using the Smithers terminology of “beyond de minimis” or “more than trivial”. The “crystallized” test of “significant” or “substantial” cause simply clarifies the language of causation so that the jury can properly focus on the correct standard, in the appellant’s submission, and does not raise the threshold of causation required. The alleged errors made by the trial judge are first that the jury was instructed on the Smithers standard of “more than a trivial cause” rather than the “crystallized” test of “significant” or “substantial” and, second, that the trial judge twice erred in expressing the Smithers standard of “more than a trivial cause” by describing it instead as a “slight or trivial cause”. The appellant submits that, as a result of these errors, the trial judge incorrectly explained the standard of causation for second degree murder to the jury and the jury may therefore have failed to understand the correct standard of causation.

[59] The position of the respondent and the intervener Attorney General for Ontario is that Harbottle did establish an elevated causation threshold with the use of the terminology of “substantial cause” but that this elevated standard only applies to the offence of first degree murder pursuant to s. 231(5) of the Criminal Code and possibly also s. 231(6) of the Code. With respect to second degree murder and manslaughter, the respondent and intervener submit that the Smithers standard continues to apply.

[60] There appears to be an inconsistency in the appellant’s argument in the present case. On the one hand, he is arguing that the “substantial cause” terminology of Harbottle does not represent a higher standard of causation than the Smithers standard and that using the terminology of “substantial cause” in relation to all homicide offences would not raise the causation threshold. On the other hand, however, he is arguing that Wilkinson J.’s use of the Smithers terminology instead of the Harbottle terminology in charging the jury on second degree murder was an error of law so serious that it justifies overturning the conviction for second degree murder and ordering a new trial. If, as the appellant submits, “substantial cause” is not a higher standard of causation than the Smithers formulation of “beyond de minimis”, it would seem to follow that using the Smithers terminology instead of the Harbottle terminology could not be an error of law, much less an error so serious that it should result in a new trial.

[61] I agree with the appellant that what Harbottle really stresses is not solely or even primarily a higher causation requirement to raise murder to first degree murder under s. 231(5) of the Code, but rather the increased degree of participation required before the accused may be convicted of first degree murder under s. 231(5). However, I do not agree that the terminology of “substantial cause” should be used to describe the requisite degree of causation for all homicide offences.

[62] Harbottle caused the victim’s death within the requirements of s. 231(5) of the Code because he was a co-principal in the murder. The degree of participation in the killing by a party whose liability for murder is based on aiding or abetting under s. 21(1)(b) or (c) of the Criminal Code or common intention under s. 21(2) of the Code, may, under the Harbottle formulation, be insufficient to permit a finding that the murder amounts to first degree under s. 231(5), which requires that the murder be committed “by that person” in the course of committing the underlying offence. In the present case, the underlying offence was the unlawful confinement of Mrs. Loski. The underlying offences listed in s. 231(5) of the Code all involve the unlawful domination of victims. Where an accused exploits this position of power and commits murder, such an egregious crime warrants the increased stigma and sentence attached to first degree murder: see Paré, supra. As explained by Cory J. in Harbottle, in order to raise culpability to first degree murder under s. 231(5), something more is required. The “something more” is not that the accused caused more the death of the victim. What is required is that his participation in the killing be sufficiently immediate, direct and substantial to warrant the greater stigma and sentence attached to first degree murder.

[63] As Harbottle, Cribbin and the present case illustrate, causation issues tend to arise in homicides involving multiple parties. Absent s. 21 of the Criminal Code, the attribution of criminal responsibility to an individual who aided or abetted another in the commission of the offence would indeed be problematic. However, the law of parties provides that individuals may bear criminal responsibility for the acts of another, and in that way speaks conclusively on some issues of causation. By virtue of s. 21 of the Code, Cory J. in Harbottle found it unnecessary to engage in fine distinctions as to the degree of participation of the two perpetrators in the killing. Rather, he focused on the meaning of the words “when the death is caused by that person” in s. 214(5) (now s. 231(5)) in deciding whether the appellant could be found guilty of first degree murder. Cory J. concluded that the use of the word “caused” in s. 214(5) imposed an additional causation requirement separate from the causation required for the offence of murder, which comes into play once the jury has already concluded that the accused is guilty of murder for having caused the death of the victim: Harbottle, supra, at pp. 316-17. Although not relevant to the present appeal, I note that s. 231(6) of the Code also uses the wording “when the death is caused by that person” found in s. 231(5) to elevate murder to first degree murder where the murder is committed in the course of the offence of criminal harassment under s. 264 of the Code. Such wording is not found in s. 231(6.1) of the Code, which raises murder to first degree where the murder is caused while committing an offence involving the use of explosives under s. 81 of the Code for the benefit of a criminal organization.

[64] Once the jury concludes that the accused has committed murder, Harbottle indicates that the jury should then move on to consider whether aggravating circumstances exist that justify the increased sentence and stigma of a first degree murder conviction under s. 231(5). The additional “causation” requirement under s. 231(5) does not refer to factual causation but rather to an increased degree of legal causation. In other words, once the jury has determined that the accused committed murder, which entails a finding that the accused caused the victim’s death in both factual and legal terms, it is then necessary to consider whether the moral culpability of the accused, as evidenced by his role in the killing, justifies a verdict of first degree murder. As Cory J. states in Harbottle, “[t]he 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” (p. 323 (emphasis deleted)). Such a high degree of blameworthiness would only be established where the actions of the accused were found to be “an essential, substantial and integral part of the killing of the victim” (Harbottle, at p. 324). The terminology of “substantial cause” is used to indicate a higher degree of legal causation but it is a standard that only comes into play at the stage of deciding whether the accused’s degree of blameworthiness warrants the increased penalty and stigma of first degree murder.

D. Explaining the Standard of Causation to the Jury

[65] As I discussed earlier, it is important to distinguish between what the legal standard of causation is and how that standard is conveyed to the jury. The difference between these two concepts has been obscured somewhat in the present case by the parties’ focus on the terminology used to describe the standard of causation. I agree with the appellant’s submission that there is only one standard of causation for all homicide offences, whether manslaughter or murder. However, I do not agree with the appellant that the standard must be expressed for all homicide offences, including second degree murder, as one of “substantial cause” as stated in Harbottle. Nor must the applicable standard be expressed with the terminology of “beyond de minimis” used in the Smithers standard.

[66] At para. 28, Lambert J.A. took note of the various terms used to describe the relevant standard of causation for homicide offences and emphasized the need to distinguish between the concept of causation and the terminology used to express it:

As can readily be seen, there is a diversity of terminology available to describe the relevant causal connection. It is important to be guided by the concepts relevant to causality rather than by the terminology.

[67] In his text Canadian Criminal Law: A Treatise (3rd ed. 1995), Professor D. Stuart quotes at p. 130 from the English case of British Columbia Electric Railway Co. v. Loach, 1915 CanLII 437 (UK JCPC), [1916] A.C. 719 (P.C.), in which the court expressed scepticism that special terminology could lead to an adequate approach to the issue of causation. While made in the context of a civil action, I find the comments in that case to be applicable to the present context (at pp. 727-28):

It is surprising how many epithets eminent judges have applied to the cause, which has to be ascertained for this judicial purpose of determining liability, and how many more to other acts and incidents, which for this purpose are not the cause at all. “Efficient or effective cause,” “real cause,” “proximate cause,” “direct cause,” “decisive cause,” “immediate cause,” “causa causans,” on the one hand, as against, on the other, “causa sine qua non,” “occasional cause,” “remote cause,” “contributory cause,” “inducing cause,” “condition,” and so on. No doubt in the particular cases in which they occur they were thought to be useful or they would not have been used, but the repetition of terms without examination in other cases has often led to confusion, and it might be better, after pointing out that the inquiry is an investigation into responsibility, to be content with speaking of the cause of the injury simply and without qualification.

[68] In describing the Smithers standard of causation, Lambert J.A. concluded that the phrase “a contributing cause that is not trivial or insignificant” reflected the applicable standard without the need to resort to the use of the Latin expression “beyond de minimis”. He further found that a cause that is “not insignificant” can be expressed positively as a cause that is “significant” and that it would therefore be correct to describe the Smithers standard as a “significant contributing cause” (para. 29).

[69] There is a semantic debate as to whether “not insignificant” expresses a degree of causation lower than “significant”. This illustrates the difficulty in attempting to articulate nuances in this particular legal standard that are essentially meaningless. I agree with Lambert J.A. that even if it were desirable to formulate a causation test for second degree murder that is higher than the Smithers standard for manslaughter but less strict than the Harbottle standard for first degree murder under s. 231(5), which I conclude it is not, it would be difficult to formulate such a test in a meaningful way and even more difficult for a jury to grasp the subtle nuances and apply three different standards of causation.

[70] The causation standard expressed in Smithers is still valid and applicable to all forms of homicide. In addition, in the case of first degree murder under s. 231(5) of the Code, Harbottle requires additional instructions, to which I will return. The only potential shortcoming with the Smithers test is not in its substance, but in its articulation. Even though it causes little difficulty for lawyers and judges, the use of Latin expressions and the formulation of the test in the negative are not particularly useful means of conveying an abstract idea to a jury. In order to explain the standard as clearly as possible to the jury, it may be preferable to phrase the standard of causation in positive terms using a phrase such as “significant contributing cause” rather than using expressions phrased in the negative such as “not a trivial cause” or “not insignificant”. Latin terms such as “de minimis” are rarely helpful.

[71] In deciding how the applicable standard of causation should be articulated to the jury, trial judges have a discretion in choosing the terminology they wish to use to explain the standard. Causation issues are case-specific and fact-driven. For that reason, it is important to afford a trial judge with the flexibility to put issues of causation to the jury in an intelligible fashion that is relevant to the circumstances of the case, including whether or not there are multiple accused persons or parties. As I discussed in Cribbin, supra, at pp. 565-66, while different terminology has been used to explain the applicable standard in Canada, Australia and England, whether the terminology used is “beyond de minimis”, “significant contribution” or “substantial cause”, the standard of causation which this terminology seeks to articulate, within the context of causation in homicide, is essentially the same: see R. v. Pagett (1983), 76 Cr. App. R. 279 (C.A.); R. v. Hallett, [1969] S.A.S.R. 141 (S.C. in banco); Royall v. R. (1991), 100 A.L.R. 669 (H.C.); R. v. Smith (1959), 43 Cr. App. R. 121 (C.-M.A.C.); R. v. Cheshire, [1991] 3 All E.R. 670 (C.A.), and R. v. Hennigan, [1971] 3 All E.R. 133 (C.A.). For example, in Cheshire, the court stated that (at p. 677):

It is not the function of the jury to evaluate competing causes or to choose which is dominant provided they are satisfied that the accused’s acts can fairly be said to have made a significant contribution to the victim’s death. We think the word ‘significant’ conveys the necessary substance of a contribution made to the death which is more than negligible.

Similarly, in Hennigan, the court described the standard of causation on a charge of causing death by dangerous driving as follows at p. 135:

The court would like to emphasise this, that there is of course nothing in s. 1 of the Road Traffic Act 1960 which requires the manner of the driving to be a substantial cause, or a major cause, or any other description of cause, of the accident. So long as the dangerous driving is a cause and something more than de minimis, the statute operates. What has happened in the past is that judges have found it convenient to direct the jury in the form that it must be, as in one case it was put, the substantial cause.

To the extent that trial judges may find it more useful to express the standard of causation in Smithers in a more direct and affirmative fashion, they may find it preferable to express the standard positively as a “significant contributing cause”, to use the terminology of Lambert J.A. in the present appeal.

[72] In light of Harbottle, where the jury must be instructed on first degree murder under s. 231(5) of the Code in addition to manslaughter or second degree murder, the terminology of “substantial cause” should be used to describe the applicable standard for first degree murder so that the jury understands that something different is being conveyed by the instructions concerning s. 231(5) of the Code with respect to the requisite degree of participation of the accused in the offence. In such cases, it would make sense to instruct the jury that the acts of the accused have to have made a “significant” contribution to the victim’s death to trigger culpability for the homicide while, to be guilty of first degree murder under s. 231(5), the accused’s actions must have been an essential, substantial and integral part of the killing of the victim.

E. Is Causation an Issue on the Facts of the Present Appeal?

[73] As I mentioned earlier, causation issues rarely arise in murder offences. Thus, in the usual case, it will be unnecessary for the trial judge to explain the applicable standard of causation to the jury in relation to either second degree murder or first degree murder. Causation issues arise more frequently in manslaughter cases, in which the fault element resides in a combination of causing death by an unlawful act, or by criminal negligence, and mere objective foreseeability of death. As the cases illustrate, causation issues tend to arise in factual situations involving multiple parties (e.g. Harbottle), thin skull victims (e.g. Smithers), intervening events (e.g. Hallett) or some combination of these factors.

[74] The appellant submits that the present appeal is a case involving multiple causation in which the trier of fact must decide whether the acts of the accused were a “beyond de minimis” contribution that triggers criminal liability. The respondent and intervener do not take issue with the appellant’s characterization of this appeal as a case involving multiple causes.

[75] The appellant submits that in this case several causes contributed to Mrs. Loski’s death. The appellant submits that the Crown’s medical expert, Dr. Roy, agreed that there were probably multiple factors contributing to Mrs. Loski’s asphyxia, namely, being hog-tied, the ligature around her neck, her congestive heart failure, her cardiac abnormality, her asthma and the old-fashioned corset girdle that she was wearing. In the appellant’s submission, the acts of the appellant and the victim’s pre-existing medical conditions may both have contributed to her death. The appellant submits that the medical evidence in the present case is equivocal as to what caused asphyxiation. The appellant submits that in a case involving only one cause of death, the “but for” test usually resolves the causation issue. However, in a case such as the present one involving two or more causes of death, the appellant submits that the trier of fact must decide whether the accused’s act contributed to the victim’s death sufficiently to attract criminal liability.

[76] The difficulty in establishing a single, conclusive medical cause of death does not lead to the legal conclusion that there were multiple operative causes of death. In a homicide trial, the question is not what caused the death or who caused the death of the victim but rather did the accused cause the victim’s death. The fact that other persons or factors may have contributed to the result may or may not be legally significant in the trial of the one accused charged with the offence. It will be significant, and exculpatory, if independent factors, occurring before or after the acts or omissions of the accused, legally sever the link that ties him to the prohibited result.

[77] In my view, this case does not involve truly multiple independent causes, as for instance, when improper treatment can also be responsible for the victim’s death. An example of a case that involves multiple causes is Hallett, supra. In that case, the victim was beaten and left unconscious by the sea and was drowned by the incoming tide. The question in that case was whether the accused’s actions were such that he should be held responsible for the death despite the intervening cause of the incoming tide. The court expressed the test of causation as follows at p. 149:

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.

Unlike Hallett, no intervening causes arose in the present case between the appellant’s action and the victim’s death.

[78] Nor does this case present an illustration of the operation of the thin-skull rule in the criminal context. The thin-skull rule, which is a long-standing principle of tort law, provides that a wrongdoer must take his victim as he finds him: Dulieu v. White, [1901] 2 K.B. 669; Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458. Thus, the fact that a victim’s head injuries are aggravated beyond what would normally be expected because of the victim’s unusually thin skull does not relieve a tortfeasor of liability for the full extent of the harm that resulted from his wrongdoing. That principle applies equally in the criminal context and is reflected, in part, in ss. 222(5)(d) and 226 of the Criminal Code. As expressed by McLachlin J., as she then was, in Creighton, supra, at p. 52:

The thin-skull rule is a good and useful principle. It requires aggressors, once embarked on their dangerous course of conduct which may foreseeably injure others, to take responsibility for all the consequences that ensue, even to death.

The potential harshness of the application of the thin-skull rule in the criminal context is mitigated by the requirement that the accused have the requisite mens rea for the offence charged, which consists of “objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act”: Creighton, supra, at p. 45.

[79] The present appeal does not present the classic thin-skull scenario where the victim’s death occurred unexpectedly as a result of the victim’s unusual and unforeseeable susceptibility to injury. It is clear on the medical evidence that the victim’s physical conditions related to her advanced age may have hastened her demise. However, there was no evidence to indicate that Mrs. Loski’s death would have occurred without the actions of the appellant and his accomplice. Nor is there any evidence that she was a thin-skull victim whose physical characteristics were unusual for a woman of her age. By all accounts, she was healthy and active. A much younger victim, subjected to the same treatment, may also have failed to survive. An example of a true thin-skull situation is Smithers, the facts of which are discussed earlier. There is also no evidence of any intervening cause which resulted in Mrs. Loski’s death. The various potential causes of death that are advanced by the appellant in the present case would all be caught by the statutory or common law principles that preclude an interruption of the chain of causation such as to eliminate the criminal responsibility of the accused.

[80] In the appellant’s own submission, it is only in cases involving multiple causes that the jury need be charged on the applicable standard of causation. In my view, this is not such a case. The fact that the appellant’s actions might not have caused death in a different person, or that death might have taken longer to occur in the case of a younger victim, does not transform this case into one involving multiple causes. Clearly, where an accused person hog ties an elderly woman, places a ligature of clothing around her neck and abandons her, in the knowledge that she lives alone, without notifying anyone of her plight, it is not unexpected that death will result if no rescue the victim in time.

[81] In my view, it was unnecessary in this case to instruct the jury on the law of causation for homicide, beyond stating the need to find that the accused caused the death of the victim. I agree with Braidwood J.A. and McEachern C.J.B.C. in the Court of Appeal that there was no plausibility to the appellant’s submission that telling the jury that the standard of causation was “substantial cause” instead of “more than a trivial cause” could possibly have made any difference to the verdict of second degree murder. There was no evidence that anything other than the actions of the appellant and his accomplice caused Mrs. Loski’s death. Mrs. Loski’s death resulted from being left alone hog-tied in her bedroom with a ligature around her neck. Nothing that occurred following the actions of the appellant and his accomplice in tying her up and leaving her alone can be said to have broken the chain of causation linking them with her death. However, in relation to the charge of first degree murder, it was necessary for the trial judge to instruct the jury in accordance with Harbottle under s. 231(5) of the Code, given the requirement that the Crown establish that the physical actions of the accused form an essential, substantial and integral part of the killing of the victim.

[82] As I stated in Cribbin, causation is a legal rule based on concepts of moral responsibility and is not a mechanical or mathematical exercise. On the facts of the present appeal, the jury properly found that the appellant caused Mrs. Loski’s death and must bear legal responsibility for having done so. The central issue at trial was whether there was sufficient evidence of the necessary intent to put the charge of murder to the jury. The defence made an application at trial to withdraw murder from the jury. The question before Wilkinson J. on this application was whether there was some evidence on which the jury could conclude that the appellant meant to cause bodily harm to Mrs. Loski that he knew was likely to cause death within the meaning of s. 229(a)(ii) of the Criminal Code. Wilkinson J. denied the defence application to withdraw the charge of murder from the jury.

[83] In my view, the real issue of concern in this case with respect to the charge of murder was not whether or not the appellant caused the victim’s death, but whether or not he knew that his actions were likely to cause her death. Did he know that the actions taken by him and by his accomplice were likely to cause Mrs. Loski’s death? Did he know that someone of Mrs. Loski’s age would likely die from the effects of being hog-tied? Did he anticipate that the gag might slip? Did he foresee that no one might come by her house and rescue her before she died?

F. The Charge to the Jury and the Verdict

[84] As discussed above, I conclude that the test of causation is the same for all homicide offences and that it is not appropriate to apply a different standard of causation to the offences of manslaughter and murder. The applicable standard of causation has traditionally been articulated in this country on the basis of the language used in Smithers that the accused must be a cause of the death beyond de minimis. This standard has not been overruled in any subsequent decisions of this Court, including Harbottle.

[85] In this case, the charge to the jury was entirely satisfactory. The trial judge charged the jury on the elements of manslaughter, second degree murder and first degree murder under s. 231(5) of the Criminal Code. With respect to manslaughter and second degree murder, the trial judge told the jurors that they must find that the accused was “more than a trivial cause” of death in order to conclude that the accused caused Mrs. Loski’s death. In essence, this reflects the test of causation set out in Smithers, and accurately states the correct standard of causation for second degree murder. On two occasions, once in the main charge and once in responding to a question from the jurors, Wilkinson J. misspoke in describing the appropriate test of causation for second degree murder, by contrasting the high standard of causation for first degree murder with the “slight or trivial cause necessary to find second degree murder”. In my view, these errors, which reflect the difficulty of expressing a standard in the negative, would not have caused the jury to believe that the applicable standard of causation for second degree murder was lower than the Smithers standard of “more than a trivial cause”. What the slips in the jury charge do illustrate is the fact that it is easier to express the standard of causation in positive terms, by referring to a “significant” contribution or cause, instead of using the negative phraseology of “beyond de minimis” or “more than a slight or trivial cause” in explaining causation to the jury.

[86] Given that the jury found the accused guilty of second degree murder, we must conclude that the jury found that the appellant had the requisite intent for the offence of murder, namely subjective foresight of death. In light of the jury’s conclusion with respect to intent, which in my view could not have been affected by the instructions on causation, it is clear that no reasonable jury could have had any doubt about whether the appellant’s actions constituted a significant, operative cause of the victim’s death. What is not clear from the verdict is the basis for the acquittal on the charge of first degree murder. The appellant suggests that the jury acquitted on first degree murder because it had a reasonable doubt as to whether the accused caused the victim’s death on the Harbottle standard of causation, but convicted of second degree murder because it was satisfied the accused caused death on the lower Smithers standard. In my view, the conviction for second degree murder was amply supported on the evidence and the jury was correctly charged on the applicable legal requirements of causation. The jury was entitled to have a doubt as to whether the degree of participation of the accused in the underlying offence of unlawful confinement, combined with the need for his substantial contribution to the death of the victim, was sufficient to elevate the murder to first degree. Whatever the jury’s reasons for acquitting the appellant of first degree murder, the jury’s verdict of second degree murder is unimpeachable.

VII. Conclusion and Disposition

[87] For these reasons, I conclude that the trial judge correctly charged the jury on the applicable standard of causation for second degree murder in expressing the standard as one in which the accused must have been more than an insignificant or trivial cause of the victim’s death. There is only one standard of causation for homicide offences, including second degree murder. That standard may be expressed using different terminology, but it remains the standard expressed by this Court in the case of Smithers, supra. The terminology of substantial cause in Harbottle is used to indicate the increased degree of participation in the killing that is required to raise the accused’s culpability to first degree murder under s. 231(5) of the Code. Harbottle did not raise the standard of causation that applies to all homicide offences from the standard expressed in Smithers.

[88] As is clear from the above, I also agree with Braidwood J.A. and McEachern C.J.B.C. in the Court of Appeal that telling the jury that the standard of causation for second degree murder was one of “substantial cause” instead of “more than a trivial cause” would not have altered the result in the present case. I would dismiss the appeal and uphold the jury’s verdict of second degree murder.

Appeal dismissed.

Solicitors for the appellant: Gil D. McKinnon and Keith Hamilton, Vancouver.

Solicitor for the respondent: The Ministry of the Attorney General, Vancouver.

Solicitor for the intervener: The Ministry of the Attorney General, Toronto.