R v Harkes, 2021 ABCA 315
[78] While the pathologists’ evidence was relevant to the issue of causation, the jury did not have to “evaluate competing causes or ... choose which is dominant” provided they were satisfied that the appellant’s acts could be said to have significantly contributed to the death of Mr. Wiese: see Nette at para 72 citing R v Cheshire, [1991] 3 All ER 670 (CA) at 677.
[79] As observed in R v Chief, 2019 MBCA 59 at paras 16 to 17 respecting expert evidence and causation:
Causation is to be decided on an assessment of all relevant evidence; the trier of fact is not constricted by the expert evidence so long as the causation finding is reasonably available on the evidence and not based on speculation (see R v Pimentel, 2000 MBCA 35 at paras 63-67, leave to appeal to SCC refused, 2000 CarswellMan 575).
The judge was not limited by the understandable reticence of the two medical experts to speak in "absolute terms" as to what degree each violent act of T and the accused played in causing death (Smithers v The Queen, 1977 CanLII 7 (SCC), [1978] 1 SCR 506 at 515, 518). There may be a number of contributing causes of death (see Maybin at para 14). Additionally, factual causation is not limited to the direct and immediate cause or the most significant cause (see Maybin at para 20). As Watt JA put it in R v Manasseri, 2016 ONCA 703, leave to appeal to SCC refused, 37322 (13 April 2017) (at para 193): "Expert medical opinion evidence is admissible to establish factual cause. But the work of the expert is purely diagnostic. We do not require medical witnesses, however eminent, to distinguish between causes and conditions, or to rank causes as to their relative significance of contribution to death".
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