Pending & Prominent: Objective foresight or operative cause...

On July 14 I blogged about R v Maybin, a case that was argued yesterday before the Supreme Court: A "Grizzly" Night, but "Maybin" a Prominent Legal Ruling.  It presents a very interesting legal issue that has received different treatment by appellate courts across the country [see for example: R v Shilon, 2006 CarswellOnt 9888 (CA); R v JSR, 2008 ONCA 544R v Sinclair, 2009 MBCA 71].  The issue, as it arises from the facts in Maybin, is whether the Maybin brothers are liable for the death of the victim where, as the trial judge found, the factual cause of death could not be directly attributed to their attack.
Briefly, the facts are that Matthew and Timoth Maybin, two brothers, 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].

Yesterday during argument the central - or at least most interesting - discussion was over what test should be applied to determine the possible culpability of the Maybin brothers. 
Crown counsel for the BC AG argued that the test should be one of objective foreseeability.  In other words, was it objectively foreseeable that having attack and left Brophy unconscious, in those circumstances, is it reasonably foreseeable that he might suffer further non-trivial bodily harm.  Put another way, the test was posed as whether the subsequent act (here the attack by Gains) was within the "scope of risk". 

Crown counsel for the ON AG (intervenor) argued that the test should be one of "operative cause".  In other words, relying on the test in R v Nette, 2001 SCC 78 that the accused must be a significant contributing cause of death, the operative test asks whether an intervening act breaks the chain such that the initial act is no longer a significant contributing cause of the death.  In this test the subsequent act need not be objectively foreseeable.

The practical difference between these tests may not be apparent at first blush.  During oral argument yesterday, however, the examples raised from the Justices highlighted the potential distinctions.  One example was that a victim is beating to unconsciousness and left in a building.  There is subsequently an earthquake and the victim dies when the building collapses.  Would either approach impose liability on the attacker in this scenario.  

Under the objective foreseeability test the attacker would not likely be held liable (as conceded by the BC AG).  The earthquake was not objectively foreseeable.  This would even appear to be so where there had been alarms warning of the impending earthquake that permitted others to escape.

Under the operative cause test, however, if others, who were in equal positions in the building to the unconscious victim, were able to escape then the initial attack and unconscious state continued to be an operative cause and could be seen as a significant contributing cause of the death. 

The other example that helps illustrate the difference in these approaches is the drowning example flowing from R v Hallett, [2969] SASR 141.  In that scenario the victim was beating and left unconscious on the beach.  Later the tide came in and the victim drowned.  Under either approach the attacker would be liable for manslaughter in this scenario.  However, change one fact - a tidal wave occurs and drowns the victim.

Under the objective foreseeability test the attacker would not likely be culpable as the tidal wave was not objectively foreseeable.

Under the operative cause test it is not as clear.  If the victim would otherwise have been on the beach but would not have been able to avoid the tidal wave even if conscious, then the tidal wave breaks the chain of causation and the attack and unconscious state are no longer a significant contributing cause.  However, if the others on the beach avoided the tidal wave so too could the victim and the attack and unconscious state could then be seen to be a significant contributing cause of death.

The Supreme Court's ruling in Maybin will be an important one.  It will clarify the law in an area where there are differing views on the legal test to be applied. 

While the objective foreseeability test is easy to understand and apply, it does potentially miss imposing liability in certain circumstances where liability should be imposed.  Should a person whose acts are a significant contributing cause of death avoid liability because a subsequent act was not reasonably foreseeable?  The earthquake example is a good one in this regard.  Despite the earthquake not being reasonably foreseeable, if others in the same position as the victim - in the same area of the building - were able to avoid death in the collapsing building, the attacker's actions could fairly be characterized as a significant contributing cause of death.  In that scenario, it is just to impose liability.  The objective foreseeability test would fail in this scenario and accordingly, the operative cause test should be adopted.
DG Mack