CAUSATION, FAULT, AND FAIRNESS IN THE CRIMINAL LAW.

• Author: Skolnik, Terry

Over the past two decades, the Supreme Court of Canada has developed an overarching account of causation rooted in the need to prevent the conviction of the morally innocent. Despite these valuable contributions, there are certain limitations to the way causation is currently conceptualized in Canadian criminal law. This article aims to address those limitations and offer a plausible alternative account of causation and its underlying rationale. It advances three core arguments. First, it explains why' judges should employ one uniform formulation of the factual causation standard: significant contributing cause. Second, it offers a new account of legal causation that distinguishes foreseeability as part of the actus reus from foreseeability inherent to mens rea. In doing so, it sets out why legal causation is primarily concerned with fairly ascribing ambits of risk to individuals. Third, it refutes the Supreme Court of Canada's underlying justification for the causation requirement. Contrary to the Court's invocation of the importance of moral innocence, this article demonstrates that causation principles actually tend to concede the accused's moral fault while still providing reasons for withholding blame for a given consequence. This reveals that causation's underlying rationale is more closely related to concerns about fair attribution rather than moral innocence. Ultimately, this article reframes causation to better answer one of the most basic questions in the criminal law: Why am I being blamed for this?

Au cours des deux dernieres decennies, la Cour supreme du Canada a elabore une explication generale de la causalite ancree dans la necessite d'eviter la condamnation de personnes moralement innocentes. Malgre ces contributions importantes, il existe certaines limites a la facon dont la causalite est presentement conceptualisee en droit criminel canadien. Cet article aborde ces limites et propose une alternative plausible pour expliquer la causalite et sa justification sous-jacente. Il met de l'avant trois arguments principaux. Premierement, il explique pourquoi les juges devraient employer une formulation uniforme de la norme de causalite factuelle : la cause a la contribution significative. Deuxiemement, il propose une nouvelle definition de la causalite juridique qui distingue la previsibilite faisant partie de l'actus reus de la previsibilite inherente a la mens rea. Ce faisant, il expose les raisons pour lesquelles la causalite juridique a pour objet principal d'attribuer equitablement les etendues des risques aux individus. Troisiemement, il refute la justification sous-jacente a l'exigence de causalite donnee par la Cour supreme du Canada. Contrairement a la Cour, qui invoque l'importance de l'innocence morale, cet article demontre que les principes de causalite tendent en fait a admettre la faute morale de l'accuse tout en fournissant des motifs pour ne pas porter de blame relativement a une consequence donnee. Cela revele que le raisonnement sous-jacent a la causalite est plus etroitement fie aux preoccupations concernant l'aspect equitable de l'attribution du blame qu'a l'innocence morale de l'accuse. En fin de compte, cet article reformule la causalite pour mieux repondre a l'une des questions les plus fondamentales du droit criminel : pourquoi suis-je tenu responsable de cela?

Introduction I. Factual and Legal Causation Generally A. Factual Causation B. Legal Causation II. Toward a Uniform Formulation for Factual Causation A. "Beyond W: Minimis" Versus "Significant Contributing Cause" B. Toward the Uniform Standard of Significant Contributing Cause C. Ilimitations to But-For Causation III. Rethinking Intervening Acts and Legal Causation A. The Limited Role of Independent Intervening Acts in Canadian Law B. Why Reasonably Foreseeable Intervening Acts Matter for C ausation IV. Causation and Fair Attribution A. Factual Causation: An Ascriptivc Approach B. Ilegal Causation and Fair Attribution Conclusion Introduction

Suppose that the accused points a gun at the victim and shoots several times. The victim dies immediately. In such contexts, the causal chain between the accused's conduct and the victim's death is clear. The accused's actions contributed to the victim's death in a physical, medical, or mechanistic sense--the threshold question of factual causation (or cause in fact). (1) That, however, is not the end of the causation inquiry in Canadian criminal law. There must also be legal causation (or cause in law), meaning that it is fair to ascribe the victim's death to the accused's conduct--or, in other words, that the accused is morally responsible for the victim's death. (2)

In other cases, causation is less evident. A third party may attack the victim between the time of the accused's initial assault and the victim's death. (3) Some natural cause or event may also play a role in the victim's death. (4) Third parties may apply some form of negligent care that also contributes to the victim's death. (5) The victim may die after refusing life-saving care for injuries inflicted by the accused. (6) In all of these cases, some type of intervening event, cause, or act (a novus actus interveniens) obscures causation. (7)

The causation inquiry is fundamental in the criminal law for a variety of reasons. Intervening acts raise concerns that touch on issues of fair labelling, culpability, and punishment. (8) These concerns are at the forefront when an accused risks being stigmatized for causing an injury or death for which they are not uniquely responsible. (9) Despite the persistence and importance of these issues, courts and scholars correctly point out that causation is notoriously complex and difficult to articulate. (10) It involves the interplay between metaphysical, scientific, moral, and legal considerations. (11)

This article aims to advance a more cogent and clear conception of the causation requirement in Canadian criminal law. Its principal arguments and structure are as follows.

Part I describes the distinction between factual and legal causation as articulated by the Supreme Court of Canada. Building on Jeremy Butt's recent scholarship, Part II argues that judges should use a uniform formulation of the factual causation standard: significant contributing cause. (12) It also shows why the but-for test is unhelpful except in the easiest of cases. (13) Part II provides the groundwork for this article's core argument about the role of factual causation--ascribing negative changes in the world to individuals. This Part demonstrates why the significant contributing cause test helps ensure a strong ascriptive link between the defendant's conduct and its role in worsening others' plights.

Part III then sets out a plausible account of legal causation's function as part of a broader causation analysis. It first shows how Canadian criminal law tends to assess an intervening act's reasonable foreseeability rather than its independence, and how the latter test is subsumed by the former. It then argues that the doctrine of reasonable foreseeability is distinct from the question of foreseeability of bodily harm when assessing moral fault. The doctrine remains useful as an analytical tool to evaluate legal causation, serving to limit criminal liability where unforeseeable contributing causes fall outside the ambit of risk associated with the accused's initial conduct.

Part IV then challenges the Supreme Court of Canada's account of the role of factual and legal causation in the criminal law (namely, that they aim to prevent the conviction of morally innocent persons). (14) This Part shows why legal causation can concede the moral culpability of individuals who significantly contribute to the victim's death, yet withhold blame due to concerns that are rooted in principles of ascription and fair labelling--rationales that are distinct from moral innocence. (15) Ultimately, this article explains why, like other legal doctrines, causation touches on one of the most crucial issues in the criminal law: Who is responsible for what?

1. Factual and Legal Causation Generally

   Causation is a necessary component of the actus reus for result crimes, (16) meaning crimes that are "in part defined by certain consequences which follow an act." (17) Those results or consequences include death (e.g., for the crimes of manslaughter, criminal negligence causing death, or murder) or bodily harm (e.g., for the offences of assault causing bodily harm or criminal negligence causing bodily harm). (18) The causation component of the actus reus for result crimes is divided into a two-step inquiry. First, there must be factual causation between the accused's conduct and the consequence. (19) If the first step is satisfied, the second step examines legal causation--whether the accused is morally responsible for the victim's death. (20)

   1. Factual Causation

      The Supreme Court of Canada explains that factual causation (or cause in fact) implies the accused's "medical, mechanical, or physical" contribution to the victim's injury or death. (21) Cause in fact is a necessary precondition that ties the accused's conduct to the consequence. (22) While medical expert reports and testimony can assist in establishing factual causation, (23) the trier of fact ultimately determines whether cause in fact is established and is not restricted to a medical expert's conclusion on that point. (24) In clear cases, the cause in fact inquiry is often framed in counterfactual terms: the victim would not have died or suffered gross bodily harm but for the accused's contribution to that result. (25)

      The Supreme Court of Canada initially explored the requisite degree of factual causation in Smithers. (26) Writing on behalf of the unanimous Court, Justice Dickson (as he then was) concluded that the accused's conduct must contribute to the victim's injury or death "outside the de minimis range." (27) Consistent with the causation test in other...