The Ontario Court of Appeal released its decision in the case of R v Kippax, 2011 ONCA 766 on December 7, 2011. It was a unanimous decision. Watt JA wrote the decision. Karakatsanis JA (as she then was) was also on the panel. Karakatsanis J (as she is now) sat on the appeal in R v Maybin, 2010 BCCA 527 last week; a case I have blogged about in the past: Objective foresight or operative cause and A "Grizzly" night, but "Maybin" a prominent legal ruling. Both cases present interesting causation issues.
Alan Kippax was driving his car, a Mercedes, on the evening of June 3, 2006. His cousin Peter Kippax was following him driving his own car, a Porsche. The two came to an intersection and came to a stop. Allan was in front, Peter was behind. The two cars then sped away from the intersection at a high rate of speed. Alan abruptly changed lanes and Peter followed. Peter lost control, however, his car slammed into another car. Peter was killed instantly. Alan was ultimately charged with two counts of dangerous driving causing bodily harm and two counts of dangerous driving causing bodily harm.
Alan was convicted and appealed.
One of the grounds of appeal related to a complaint about the trial judge's finding on causation and specifically on factual causation [para 14]. That ground of appeal was dismissed.
In dismissing the appeal Watt JA explained that factual causation is concerned with how the victim died and has nothing to do with "intention, foresight or risk" [para 22-23]. With respect to factual causation, Watt JA concluded: "The Crown need only prove that an accused's conduct was a significant contributing cause of the death..." [para 24].
Turning to legal causation, Watt JA explained that this has to do with whether an accused should be held responsible for one's death. In negligence based offences Watt JA held that reasonable foreseeability is a relevant consideration (citing R v Shilon, 2006 CarswellOnt 9888 (CA)). While independent intervening acts can break the chain of causation, it will not be broken "where an accused intentionally produced the outcome, reckless brought it about, or if the ordinarily circumspect person would have seen it as a likely consequence of his or her own conduct: R v Maybin, 2010 BCCA 527 at para 35".
Based on this approach to the law, Watt JA dismissed the ground of appeal. There was no palpable or overriding error in the finding of factual causation. Factual causation was supported by the findings that the "cumulative force of evidence of excessive speed, inclement weather, compromised road conditions, inherently dangerous driving manoeuvres and the close physical proximity of the two speeding vehicles" [para 31]. In conclusion Watt JA noted there could be no complaint about the finding that factual causation had been made out and that the argument was more properly one relating to legal causation: "It may also be debatable whether what is now advanced as a flaw in the analysis of factual causation is not more appropriately a consideration of legal causation" [para 33].