R. v. Malkowski, 2015 ONCA 887
[14] We begin with the following general principles concerning causation:
• the causation standard in motor vehicle offences involving death is the same standard that applies in cases of culpable homicide, namely that the accused’s conduct be at least a contributing cause of the deceased’s death, outside the de minimis range; the accused’s conduct need not be the sole contributing cause of death, provided it contributed beyond de minimis to that death;[1]
• in deciding whether an accused should be held responsible for causing a death, it needs to be determined whether the accused caused the death, both in fact and in law;
• legal causation is the inquiry into “whether the accused should be held criminally responsible for the consequences that occurred.” Legal causation is “based on concepts of moral responsibility”, and informed by legal considerations, such as the wording of the offence-creating provision and the principles of criminal justice, such as that the morally innocent should not be punished;[2]
• the doctrine of novus actus interveniens or intervening act, is part of the analysis of whether legal causation is established, and whether an accused should be legally accountable for the death;
• in R. v. Maybin, the Supreme Court discussed two different approaches to determining whether an intervening act has broken the chain of causation – i.e. 1.) considering whether the intervening act was “reasonably foreseeable”; or 2.) considering whether the accused’s actions were “effectively overtaken by the more immediate causal action of another party acting independently”. Importantly, the Court noted that these two approaches are only “analytical aids” that may be useful depending on the factual context. They are not new standards of legal causation. The test remains whether the accused’s dangerous and unlawful acts are a significant and contributing cause of the victim’s death.[3]
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