Supreme Court of Canada **SUPREME COURT OF CANADA** Appeals Heard: February 13, 2024 — Judgment Rendered: May 17, 2024 — Dockets: 40701, 40709 --- ## Parties **Between:** Emanuel Lozada — Appellant v. His Majesty The King — Respondent — and — Victor Ramos — Appellant v. His Majesty The King — Respondent **Indexed as: R. v. Lozada** **2024 SCC 18** **File Nos.:** 40701, 40709. **2024:** February 13; **2024:** May 17. **Present:** Karakatsanis, Rowe, Martin, Jamal and Moreau JJ. **On appeal from the Court of Appeal for Ontario** --- ## Headnote Criminal law — Charge to jury — Co‑principal liability — Group assault — Manslaughter — Causation — Intervening act — Both accused part of group that attacked victim but fatal stab wound inflicted by other group member — Accused convicted of manslaughter by jury — Accused appealing convictions and claiming that trial judge erred in jury instructions on causation in context of co‑principal liability — Whether jury properly instructed. L and R were involved in a physical altercation between two groups of people. The victim was stabbed in the heart and died. L and R did not inflict the fatal stab wound and there was no evidence that they knew anyone in their group had a weapon. The jury was instructed that they may find L and R guilty of manslaughter if they were satisfied that L and R's unlawful acts were a significant contributing cause of the victim's death, even if the victim was stabbed by a co-participant in the group assault. L and R were convicted of manslaughter. A majority of the Court of Appeal dismissed their appeals. L and R now appeal to this Court as of right based on a dissent in the Court of Appeal. **Held** (Rowe and Jamal JJ. dissenting): The appeals should be dismissed. **Per Karakatsanis, Martin and Moreau JJ.:** On a reading of the jury instructions and the trial judge's answers to the jury's questions as a whole, the jury was accurately instructed on the issue of causation. Accordingly, the appeals should be dismissed. Appellate courts take a functional approach in reviewing jury instructions by asking whether the jury was properly, not perfectly, instructed so as to equip the jury to decide the case according to the law and the evidence. A single ambiguous or problematic statement in one part of a charge will not necessarily be an error of law where the charge as a whole equipped the jury with an accurate understanding of the law. The overall test for legal causation for manslaughter is whether the accused's unlawful acts were a significant contributing cause of death. In cases where an intervening act is said to have broken the chain of causation, two analytical aids may assist the trier of fact: (1) whether it was reasonably foreseeable that the type of act that occurred would follow from the accused's unlawful conduct, and (2) whether the intervening act was the voluntary act of a free agent. These analytical aids serve as tools for applying the overall significant contributing cause test. The act of a co‑participant in a group assault can trigger the application of the intervening act doctrine. There is no single test or measure for determining whether a particular act has broken the chain of causation, and the causation inquiry is case-specific and fact-driven. In the instant case, the trial judge's legal causation instructions conveyed the correct overall test and focused the jury's attention on L and R's contribution to the victim's death. The trial judge's references to reasonable foreseeability, read as a whole, did not misdirect the jury. Accordingly, the manslaughter convictions should be upheld. **Per Rowe and Jamal JJ. (dissenting):** The appeals should be allowed, the manslaughter convictions set aside and a new trial ordered. There is agreement with the majority that L and R were entitled to have the jury properly instructed on how an intervening act may affect legal causation for unlawful act manslaughter. However, respectful disagreement exists with the majority's conclusion that the trial judge's intervening act instruction properly instructed the jury. The trial judge failed to properly instruct the jury by repeatedly instructing them that, even though the victim was stabbed by another member of the group involved in the group assault, it "may be enough" to establish legal causation if it was reasonably foreseeable that assaults on the victim would continue. This instruction did not properly explain to the jury that reasonable foreseeability of an intervening act will not usually break the chain of legal causation, but that an act that is highly unusual or extraordinary or otherwise unforeseeable may break the chain. To find that L and R's actions were legal causes of the victim's death even though he was stabbed by another member of the group, the jury had to find that the stabbing did not break the chain of legal causation. As the trial judge instructed, this required the jury to find that the stabbing was not a highly unusual or extraordinary occurrence, was not reasonably unforeseeable, and was not an intentional act of a third party acting independently from the appellants. The trial judge never clearly directed the jury to make these findings. Moreover, the trial judge's instructions did not make clear that the reasonable foreseeability of the continuing assaults "may be enough" to establish legal causation despite the stabbing of the victim by a co-participant only if the jury found that the stabbing was the same type of assault that continued throughout the altercation, not a qualitatively different type of intervening act. This omission was not cured by the remainder of the trial judge's instructions. --- ## Cases Cited **By Moreau J.** Applied: R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30; referred to: R. v. Abdullahi, 2023 SCC 19; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301; R. v. Jacquard, [1997] 1 S.C.R. 314; Smithers v. The Queen, [1978] 1 S.C.R. 506; R. v. Strathdee, 2021 SCC 40. **By Jamal J. (dissenting)** R. v. Strathdee, 2021 SCC 40; R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30; R. v. Abdullahi, 2023 SCC 19; R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823. --- ## Statutes and Regulations Cited Criminal Code, R.S.C. 1985, c. C‑46, ss. 21(1)(a), (b), 686(1)(b)(iii), 691(1)(a). --- ## Authors Cited Watt, David. *Helping Jurors Understand*, 2nd ed. Toronto: Thomson Reuters, 2023. --- ## Appeal History APPEALS from a judgment of the Ontario Court of Appeal (Doherty, Hoy and Paciocco JJ.A.), 2023 ONCA 221 (*sub nom.* R. v. Triolo), 166 O.R. (3d) 179, 424 C.C.C. (3d) 415, [2023] O.J. No. 1568 (Lexis), dismissing the appellants' appeals from their manslaughter convictions. Appeals dismissed, Rowe and Jamal JJ. dissenting. --- ## Counsel **Nader Hasan** and **Spencer Bass**, for the appellant Emanuel Lozada. **Richard Litkowski**, for the appellant Victor Ramos. **Jennifer A. Y. Trehearne**, **Jennifer Epstein** and **Samuel Greene**, for the respondent. --- ## Reasons for Judgment The judgment of Karakatsanis, Martin and Moreau JJ. was delivered by **Moreau J. —** ### I. Overview [1] The appellants, Emanuel Lozada and Victor Ramos, appeal as of right to this Court under s. 691(1)(a) of the *Criminal Code*, R.S.C. 1985, c. C-46. The majority of the Court of Appeal for Ontario dismissed their appeals from their manslaughter convictions. [2] The charges against the appellants arose from physical altercations between two groups of people who had been attending a rave in downtown Toronto. The first altercation was a fight between Rameez Khalid and members of the appellants' group. Mr. Khalid and his friend, Farrukh Galliah, fled the scene and were chased. [3] The other group, which included Mr. Triolo and the appellants, followed shortly after. The Crown's theory at trial was that the group pursued Mr. Khalid and Mr. Galliah to "settle the score" (2023 ONCA 221, at para. 4). There was a second altercation. Mr. Khalid was stabbed in the heart and died. [4] The jury was satisfied that Mr. Triolo was the stabber, and so he was convicted of second degree murder. The appellants were convicted of manslaughter. At trial, the Crown advanced two theories of liability: co-principal liability (s. 21(1)(a) of the *Criminal Code*) and aiding (s. 21(1)(b)). The trial judge charged the jury on both theories. There was no evidence that the appellants knew anyone in their group had a weapon. [5] I am essentially in agreement with the majority of the Court of Appeal that, on a reading of the jury instructions and the trial judge's answers to the jury's questions as a whole, the jury was accurately instructed on the issue of causation. The trial judge's statements that it "may be enough" to establish legal causation if the continuation of assaults on Mr. Khalid was reasonably foreseeable, while potentially ambiguous in isolation, did not, read as a whole, misdirect the jury. [6] Therefore, I would dismiss the appeals. --- ### II. The Trial Judge's Instructions on Causation [7] The trial judge began the causation instructions by setting out the proper test for legal causation: whether the particular appellant's unlawful act was a significant contributing cause of death. He explained that causation "must be more than a trivial contribution to the death of [the victim]" (A.R., vol. VIII, at p. 106). [8] The trial judge then discussed the reasonable foreseeability concept in relation to the facts of the case. He noted that "the fact that none of the [appellants] knew that anyone in their group had a weapon" was relevant (A.R., vol. VIII, at p. 108). He then stated: > The specific act of stabbing does not need to be reasonably foreseeable at the time of the particular [appellant's] dangerous unlawful act for that dangerous unlawful act to be a significant contributing cause of death. It may be enough if the continuation of assaults on [the victim] was reasonably foreseeable. (A.R., vol. VIII, at p. 108) [9] Next, the trial judge posed several additional questions about the effect of each appellant's conduct in relation to the fatal stabbing. The jury was told to consider: (1) whether those assaulting the victim made him more vulnerable to the fatal stab wound; (2) whether they prevented his escape; and (3) whether they prevented others from assisting him. [10] The trial judge concluded this portion of his instructions by reiterating the overall "significant contributing cause" standard for legal causation (p. 109). [11] During deliberations, the jury asked for "a definition for 'a break in the chain of causation'" (A.R., vol. VIII, at p. 7). [12] In response, the trial judge first repeated the overall "significant contributing cause" standard and explained that this standard relates to whether "it is still morally just and fair to hold the particular accused legally responsible for his contribution to [the victim's] death" (A.R., vol. VIII, at p. 220). He repeated the statement that it "may be enough" to find legal causation if continuation of assaults was reasonably foreseeable, but also noted that this analysis "is not the final word" (p. 221). [13] The trial judge concluded his answer by listing three scenarios in which the fatal act would break the chain of causation: - If the fatal act was "an extraordinary and highly unusual occurrence, as opposed to being an event that could ordinarily, or naturally flow from the circumstances of this case" (p. 221);

• If the fatal act was "a reasonably unforeseeable act, remembering that the act of stabbing does not need to be reasonably foreseeable at the time of the particular [appellant's] dangerous, unlawful act" (p. 222);
• If the fatal act was "an intentional act of a third party acting independently from the [appellants]" (p. 222). --- ### III. The Accuracy of the Jury Instructions #### A. Relevant Legal Principles [14] Appellate courts take a functional approach in reviewing jury instructions by asking whether a jury was properly, not perfectly, instructed so as to equip the jury to decide the case according to the law and the evidence (R. v. Abdullahi, 2023 SCC 19, at para. 35; R. v. Jacquard, [1997] 1 S.C.R. 314, at p. 332). A single ambiguous or problematic statement in one part of a charge will not necessarily be an error of law where the charge as a whole equipped the jury with an accurate understanding of the law (Abdullahi, at para. 35). [15] In Maybin, at para. 28, this Court held that the overall test for legal causation for manslaughter remains the same as the earlier statements from Smithers v. The Queen, [1978] 1 S.C.R. 506: the accused's unlawful acts must have been a significant contributing cause of death. Two analytical aids may assist the trier of fact in determining whether an intervening act broke the chain of causation: (1) whether it was reasonably foreseeable that the type of act that occurred would follow from the accused's unlawful conduct; and (2) whether the intervening act was the voluntary act of a free agent (Maybin, at para. 28). [16] With respect to the reasonable foreseeability analytical aid, there is no requirement that the specific subsequent attack be reasonably foreseeable. Instead"it is sufficient if the general nature of the intervening act and the risk of harm were objectively foreseeable" (Maybin, at para. 32). The overarching question that the trier of fact must always keep in mind is whether the accused's acts were a significant contributing cause of death. [17] The circumstances of Maybin illustrate the type of specificity that is required when relying on the reasonable foreseeability analytical aid. Karakatsanis J. rejected the defence's submission that the bouncer's deliberate blow was an independent, intervening act breaking the chain of causation. The dispositive issue was whether the general nature of the act — specifically, the risk that people would respond violently to being punched unconscious in a bar — was reasonably foreseeable. It was. #### B. Application to This Case [18] The appellants submit that the jury was improperly instructed when the trial judge twice stated that it "may be enough" to establish legal causation if the continuation of assaults on Mr. Khalid was reasonably foreseeable. [19] In my view, the trial judge's statements that it "may be enough" to establish legal causation if the continuation of assaults was reasonably foreseeable could be characterized as ambiguous in isolation. The statements did not explicitly state that the continuation of assaults must have been of the same general type as the fatal stabbing. In my view, however, reading the charge as a whole, the jury was properly instructed on legal causation. [20] The remainder of the instructions made that underlying premise clear. The trial judge accurately stated the overall test for legal causation — whether the appellants' conduct was a "significant contributing cause" of the victim's death — multiple times throughout his instructions and in his answer to the jury's question. The overall significant contributing cause test serves as the appropriate standard of reference against which any potentially ambiguous statements must be assessed. [21] The further references to the evidence would have also centered the jury's attention on each appellant's contribution to Mr. Khalid's death. These include the trial judge's prompts that the jury consider whether those assaulting the victim made him more vulnerable to the fatal stab wound, prevented his escape, or prevented others from assisting him. [22] The functional approach to appellate review of jury instructions requires that the charge be read as a whole (Abdullahi, at para. 35). As the trial judge explained, accepting that the appellants' acts were a significant contributing cause of death required that the appellants "made a significant contribution to the death of [the victim]" (A.R., vol. VIII, at p. 220). This is the correct standard. [23] Causation is "case-specific and fact-driven" (Maybin, at para. 17). Trial judges must be accorded "the flexibility to put issues of causation to the jury in an intelligible fashion that is responsive to the particular facts of the case" (R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 69). The trial judge was entitled to adapt his instructions to the particular facts before the jury. [24] Moreover, Maybin does not structure the jury's reasonable foreseeability analysis by first requiring it to characterize the intervening act and then ask whether that type of act was reasonably foreseeable. Rather, the relevant question under the reasonable foreseeability analytical aid is whether the general nature of the intervening act and the risk of harm were objectively foreseeable. This is precisely what the trial judge instructed the jury to consider. [25] In sum, the trial judge's legal causation instructions conveyed the correct overall test and focused the jury's attention on each appellant's contribution to Mr. Khalid's death. The trial judge's references to reasonable foreseeability, read as a whole, did not misdirect the jury. --- ### IV. Intervening Acts and Group Assaults [26] The issue of whether it is legally possible, in the context of a group assault, for an intervening act to be committed by a member of the attacking group requires additional comment, having been raised by the Crown before this Court. [27] As this Court held"[g]enuinely new issues are legally and factually distinct from the grounds of appeal raised by the parties . . . and cannot reasonably be said to stem from the issues as framed by the parties" (R. v. Abdullahi, at para. 13). This is such an issue. The appellants did not raise it before this Court, and neither did the respondent before the courts below. The issue was not addressed by the majority of the Court of Appeal. Accordingly, I decline to address this issue beyond the narrow point that follows. [28] The possibility of an intervening act occurring in the context of a group assault was contemplated by this Court in R. v. Strathdee, 2021 SCC 40, at para. 4: > Joint/co‑principal liability flows whenever two or more individuals come together with an intention to commit an offence, are present during the commission of the offence, and contribute to its commission in some way. Once joint liability attaches, all co-principals are equally responsible for the acts of the others. This is not to say that acts of a co-principal could not, in certain circumstances, serve as an intervening act. [29] The causation inquiry is case-specific and fact-driven. There is no single test or measure for determining whether a particular act has broken the chain of causation. The issue in considering joint/co-principal liability is whether each co-principal's unlawful acts were a significant contributing cause of death. This is a question for the trier of fact. [30] Accordingly, I reject the Crown's argument before this Court that in no case can the act of a co-participant in a group assault trigger the application of the intervening act doctrine. --- ### V. Conclusion [31] I would dismiss the appeals. --- ## Dissenting Reasons The reasons of Rowe and Jamal JJ. were delivered by Jamal J. — [32] I agree with my colleague Moreau J. that the appellants were entitled to have the jury properly instructed on how an intervening act may affect legal causation for unlawful act manslaughter. As my colleague explains, the overall test for legal causation for manslaughter is whether the accused's unlawful acts were a significant contributing cause of death, and an intervening act may in some cases break the chain of causation even in the context of a group assault. [33] I respectfully disagree, however, with my colleague's conclusion, and that of the majority of the Court of Appeal for Ontario, that the trial judge's intervening act instruction properly instructed the jury. In my view, the trial judge's instruction was erroneous and the curative proviso does not apply. --- ### I. The Trial Judge's Intervening Act Instruction Did Not Properly Instruct the Jury on Legal Causation [34] In my view, the trial judge failed to properly instruct the jury by repeatedly instructing them that, even though Rameez Khalid was stabbed by another member of the group involved in the group assault, it "may be enough" to establish legal causation if it was reasonably foreseeable that assaults on Mr. Khalid would continue. This instruction was erroneous. [35] Even when read functionally and as a whole, the trial judge's instructions on the causation element of unlawful act manslaughter did not properly equip the jury to decide the case according to the law and the evidence. [36] In my view, this instruction was erroneous. As this Court has recognized, a reasonably foreseeable intervening act will not usually break the chain of legal causation so as to relieve the offender of legal responsibility. While reasonable foreseeability is an important analytical aid, an act that is highly unusual or extraordinary or otherwise unforeseeable may break the chain of causation. In the context of an intervening act occurring in a group assault, the jury had to assess whether the intervening act (the stabbing by a co-participant) was of the same general nature as the continuing assault. [37] In sum, to find that the appellants' actions were legal causes of Mr. Khalid's death even though he was stabbed by another member of the group, the jury had to find that the stabbing did not break the chain of legal causation. To reach that finding, the jury had to assess whether the stabbing was: (1) not a highly unusual or extraordinary occurrence; (2) not reasonably unforeseeable; and (3) not an intentional act of a third party acting independently from the appellants. The trial judge never clearly directed the jury to make these findings. [38] I accept that "[a] single ambiguous or problematic statement in one part of a charge will not necessarily be an error of law where the charge as a whole equipped the jury with an accurate understanding of the law" (Abdullahi, at para. 35). But in this case, the trial judge's instruction was not simply ambiguous or an isolated error — it was repeated, and repeatedly linked to the wrong legal standard. [39] Although the trial judge explained the approach to legal causation by referring to other evidence and inviting the jury to consider whether the appellants' unlawful actions made Mr. Khalid more vulnerable to the stabbing, prevented his escape, or prevented others from assisting him, these are indicia going to causation in general — not indicia going to whether the intervening act broke the chain of causation. The jury still needed to be properly instructed on when a co-participant's act would break the chain of causation. [40] In addition, in response to the jury's question asking for a definition of a "break in the chain of causation", the trial judge told the jury that they may consider: (1) whether holding the appellant liable for the co-participant's stabbing would be "morally just and fair" (A.R., vol. VIII, at p. 220); (2) the reasonable foreseeability of the intervening act; and (3) whether the intervening act was the voluntary act of a free agent. Although this instruction was framed more correctly than the earlier instruction, it still did not cure the earlier error. [41] My colleague Moreau J. concludes that the trial judge "was correct to tell the jury that the reasonable foreseeability of continuing assaults 'may be enough' to establish causation, provided that the jury also considered whether these continuing assaults were a significant contributing cause" (para. 19). With respect, the issue is not whether the jury should have also considered whether the continuing assaults were a significant contributing cause; it is whether the jury was properly instructed on when the intervening act of another member of the group could break the chain of causation. [42] Respectfully, I do not share this view. It was up to the jury, not the trial judge, to decide whether the intervening act (the stabbing) was of the same general nature as a continuation of the assault. The trial judge should not have pre-decided that issue for the jury by repeatedly instructing them that the reasonable foreseeability of continuing assaults "may be enough" to establish causation. [43] The risk of an improper instruction was especially high here because the trial judge repeated his incorrect instruction when the jury asked him to define a "break in the chain of causation". As the jury's question made clear, the case turned on this issue. [44] I also agree with the following observations of former Justice David Watt on the importance of questions from the jury: > Appellate courts say that answers to questions from the jury are extremely important. Questions carry an influence far exceeding the instructions in the main charge. If a jury asks a question about a specific issue, it means they are having difficulty with it and need guidance. The answer to a jury question is often the last thing the jury hears from the trial judge before they deliberate further and reach a verdict. > (D. Watt, K.C., Helping Jurors Understand (2nd ed. 2023), at § 9:6) [45] In this case, as reflected in the jury's question, the case against the appellants turned on the issue of what constitutes a break in the chain of legal causation. The jury could reasonably have interpreted the trial judge's answer as directing them to find legal causation if the continuation of assaults was reasonably foreseeable, without requiring them to assess whether the stabbing — the actual intervening act — broke the chain of causation. --- ### II. The Curative Proviso Does Not Apply [46] In the circumstances, I would not apply the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46. [47] If an accused has shown that a jury instruction is improper"the Crown, if it seeks to rely on the [curative] proviso, bears the burden to establish one of the requirements of the proviso: that no substantial wrong or miscarriage of justice occurred" (R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505, at para. 16). The proviso may apply where "the evidence is so overwhelming that a trier of fact would inevitably convict" (R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 29). [48] The Crown argues that the evidence against the appellants "was so overwhelming that there is no realistic possibility that a new trial would produce a different verdict" (R.F., at para. 53). I disagree. There was no evidence that the appellants knew anyone in their group had a weapon. The jury found that the appellants were not the stabber; it was Mr. Triolo who stabbed Mr. Khalid. The factual question of causation — whether each appellant's unlawful acts were a significant contributing cause of death despite the stabbing by Mr. Triolo — was genuinely contested. A jury properly instructed on the intervening act doctrine might reasonably have had a reasonable doubt about causation. [49] In the alternative, the Crown argues that the appellants would have been liable for manslaughter as aiders even if the jury had a reasonable doubt about the appellants' liability as co-principals. I disagree. The trial judge instructed the jury on both theories of liability, and there is no basis to assume the jury convicted on the aiding theory rather than the co-principal theory. [50] Therefore, in the circumstances, I see no basis to apply the proviso. --- ### III. Disposition [51] I would allow the appeals, set aside the manslaughter convictions, and order a new trial. --- Appeals dismissed, Rowe and Jamal JJ. dissenting. --- Solicitors for the appellant Emanuel Lozada: Stockwoods, Toronto. Solicitors for the appellant Victor Ramos: Smith Litkowski, Toronto. Solicitor for the respondent: Ministry of the Attorney General of Ontario, Crown Law Office — Criminal, Toronto.