A case which has interested me for some time now, and is currently on appeal to the Supreme Court, prompted me to create a new category for my blog: Pending and Prominent. R v Maybin, 2010 BCCA 527 presents the Court with very interesting legal issues relating to factual and legal causation and to consider the diverging approaches to the particular issue raised in that case that have arisen across the country.
Matthew and Timoth Maybin, two brothers, apparently enjoyed playing pool. On October 21, 2006 they were playing pool at the Grizzly Bar Pub in Nanaimo when Michael Brophy, who was talking to a young lady, happened to move one of their balls. The Maybin brothers did not take kindly to this and attacked Brophy. Their sudden and violent attack left Brophy a "standing knockout" and he fell unconscious on the pool table. Buddha Gains, a bouncer at the Pub, came rushing over and decided to once again strike Brophy in the head [paras 7-11].
Brophy died later that same day as a result of injuries he received from those assaults. The medical cause of death was determined to be a subarachnoid haemorrhage in the brain [para 12].
All three men were charged and jointly tried. After trial all three were acquitted. In acquitting all three men the trial judge held, inter alia:
In order to succeed in proving that Timothy Maybin is guilty of manslaughter, the Crown must prove beyond a reasonable doubt that he struck a blow which was the sole cause, or a significant contributing cause, of the fatal injury inflicted on Michael Brophy. The evidence does not support the inference that either of those two propositions is true, beyond a reasonable doubt. As a result, Timothy Maybin cannot be found guilty of manslaughter.It must follow that Matthew Maybin cannot be found guilty of manslaughter, because the only way he could be found guilty is by proving that he aided or abetted the commission of manslaughter by Timothy Maybin.In order to prove that Buddha Gains is guilty of manslaughter, it must be proved beyond a reasonable doubt that the blow he struck was the sole cause, or a significant contributing cause of the fatal injury to Michael Brophy. As with Timothy Maybin, the evidence does not support either inference beyond a reasonable doubt Buddha Gains cannot be found guilty of manslaughter [para 19 CA].
The Crown appealed.
Ryan JA, for the majority, allowed the Crown's appeal in relation to the Maybin brothers; the appeal in relation to Gains was dismissed.
Dealing first with factual causation, Ryan JA held as follows:
...the trial judge failed to fully examine the factual cause of Mr. Brophy’s death, ended his factual inquiry early and never reached the question whether anyone should be held legally responsible for the death of Michael Brophy...the trial judge ended his examination of the factual cause of death once he concluded he could not say which blow or combination of blows administered by the Maybin brothers and Mr. Gains caused the death of Mr. Brophy. This focus was not wrong, but its scope was too narrow.
The Maybins’ punches did more to Mr. Brophy than cause bruising and bleeding to his face and head. Another product of their assault was that Mr. Brophy was rendered unconscious, tumbling face down onto the pool table where he became a target for Mr. Gains. As a result, Mr. Brophy died. Given these facts, it cannot be open to dispute that the Maybin brothers were one of the factual causes of Mr. Brophy’s death. Their blows either killed Mr. Brophy or at the very least rendered him unconscious and exposed to the attack of Mr. Gains. But for their actions, Mr. Brophy would not have died.
Given that Mr. Brophy's death was a consequence of the actions of the Maybin brothers and thus a factual cause, the trial judge was required to ask, but did not, whether they were also legally responsible for that outcome [paras 25 and 26].
Turning to legal causation Ryan JA noted that the respondent Maybin brothers argued that due to the "intervening act" - the assault of Gains - they could not be held liable for the death. In considering this argument Ryan JA turned to the cases of R v Shilon, 2006 CarswellOnt 9888 (CA) and R v Sinclair, 2009 MBCA 71. After discussing the applicable tests in those cases, Ryan JA, preferring the approach in Shilon, offered the following conclusion:
...I agree with the Crown that there is a reasonable possibility that a trier of fact could conclude that it was reasonably foreseeable that the Maybins’ assault would provoke the intervention of others, perhaps the bar staff, with resulting non-trivial harm. If that were found to be the case it would follow that their contribution to Mr. Brophy’s death would be outside the de minimus range.It follows that I am of the view that there must be a new trial on the charge of manslaughter for both Timothy and Matthew Maybin [paras 43-44].
On appeal to the Supreme Court, the central issue will undoubtedly revolve around which of the two approaches to intervening act should be followed.
The Court will have to consider the Shilon approach which is focused on reasonable foreseeability of future non-trivial harm. Under this approach the relevant inquiry is, at the time of the first impugned act, did the first actor reasonably foresee that a subsequent act would occur that would inflict non-trivial bodily harm. If so, than the first actor may be liable for manslaughter. Under this approach, the precise act need not be foreseen, so long as the first actor foresees that an act might occur which would cause non-trivial bodily harm.
The Court will similarly have to consider the Sinclair approach which is focused on whether the subsequent act was "extraordinary" or "unusual". In this approach the focus is retrospective - not prospective as in Shilon. In this approach the Court considers the subsequent act and determines if it was "extraordinary" or "unusual" to the extent that it constitutes an intervening act.
The Court may also consider if both test can co-exist and apply when and where appropriate.
Maybin presents an interesting issue for the Court to consider and one that is prime for consideration. Ultimately, in my view, the majority of the Court of Appeal correctly found that the trial judge erred in not considering the issue of legal causation and a new trial should be ordered. Regardless, Maybin is Pending & Prominent.