R. v. Maybin (M.L.) et al., (2010) 295 B.C.A.C. 298 (CA)

• Judge: Finch, C.J.B.C., Ryan and Huddart, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: April 14, 2010
• Jurisdiction: British Columbia
• Citations: (2010), 295 B.C.A.C. 298 (CA);2010 BCCA 527

R. v. Maybin (M.L.) (2010), 295 B.C.A.C. 298 (CA);

    501 W.A.C. 298

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. DE.008

Regina (appellant) v. Matthew Leslie Maybin, Timothy Andrew Maybin, and Buddha Sadu Gains also known as Steven Allen Gains (respondents)

(CA036530; 2010 BCCA 527)

Indexed As: R. v. Maybin (M.L.) et al.

British Columbia Court of Appeal

Finch, C.J.B.C., Ryan and Huddart, JJ.A.

November 25, 2010.

Summary:

Brophy was at a pub, standing beside a pool table talking, when he moved one or two of the pool balls. The pool-players, Matthew and Timothy Maybin, confronted him. Timothy punched Brophy in the head. Matthew assisted his brother. Brophy fell face down on the pool table, unconscious. One of the doormen, Gains, believing it to be a fight, asked a patron, "who started it?" The patron pointed in the direction of the pool table. Gains punched Brophy in the head, and carried him outside, leaving him on his back. An ambulance was called. Brophy died later that afternoon. Medical cause of death was a subarachnoid haemorrhage in the brain. The Maybin brothers and Gains were charged with manslaughter in that they had together caused Brophy's death by means of an unlawful act: assault causing bodily harm.

The British Columbia Supreme Court, in a decision reported at [2008] B.C.T.C. Uned. C97, acquitted all three. The trial judge concluded that the Maybin brothers and Gains, acting independently, committed separate assaults causing bodily harm. The trial judge also found that he was unable to determine whether any or all of them had caused Brophy's death. On this appeal the Crown alleged that the trial judge erred in law in analyzing the issue of causation; for that reason, there had to be a new trial.

The British Columbia Court of Appeal, Finch, C.J.B.C., dissenting, allowed the Crown's appeal of the acquittal of the Maybin brothers and ordered a new trial for them on the charge of manslaughter. Had the trial judge correctly applied the law as it related to causation, he could have concluded that the brothers caused Brophy bodily harm in a situation where it was not unforeseeable that further non-trivial harm would be caused by the actions of others. The court dismissed the Crown's appeal of the acquittal of Gains.

Criminal Law - Topic 1312

Manslaughter - Causation - The trial judge acquitted the three accused of the offence of manslaughter - The victim had died from injuries received from a blow or blows to his head - The British Columbia Court of Appeal stated that the trial judge failed to fully examine the factual cause of death, ended his factual inquiry early and never reached the question whether anyone should be held legally responsible for the death - The Crown and defence had been pre-occupied with the medical cause of death - As a result, 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 caused the death - "This focus was not wrong, but its scope was too narrow" - The essential question in determining factual cause was, but for the actions of the parties, would the victim have died at that time and place - If the answer was that he would not have died "but for" the actions of the parties, the next question would be whether the parties should be held to be legally responsible for the death - See paragraphs 21 to 24.

Criminal Law - Topic 1312

Manslaughter - Causation - Brophy was at a pub, standing beside a pool table talking, when he moved one or two of the pool balls - The pool-players, Matthew and Timothy Maybin, confronted him - Timothy punched Brophy in the head - Matthew assisted his brother - Brophy fell face down on the pool table, unconscious - One of the doormen, Gains, punched Brophy in the head - Brophy died - Medical cause of death was a subarachnoid haemorrhage in the brain - The trial judge found that he was unable to determine whether any of the Maybin brothers and Gains or all of them had caused Brophy's death, and acquitted them of manslaughter - On appeal, the Crown alleged that the trial judge erred in law in analyzing the issue of causation - The British Columbia Court of Appeal held that, given the facts, it could not be open to dispute that the Maybin brothers were one of the factual causes of Brophy's death - "[F]actual causation is concerned with an inquiry as to how the victim came to his death in a medical, mechanical or physical sense and what the contribution of the accused was to that result" - Brophy would not have died "but for" the brothers' actions - The trial judge ought to have gone on to consider whether leaving Brophy unconscious and lying on a pool table, a factual cause of death, was also a legal cause in that it was a contributing cause beyond the de minimus range - See paragraphs 25 to 27.

Criminal Law - Topic 1312

Manslaughter - Causation - Brophy was at a pub, standing beside a pool table talking, when he moved one or two of the pool balls - The pool-players, Matthew and Timothy Maybin, confronted him - Timothy punched Brophy in the head - Matthew assisted his brother - Brophy fell face down on the pool table, unconscious - One of the doormen, Gains, punched Brophy in the head - Brophy died - Medical cause of death was a subarachnoid haemorrhage in the brain - The trial judge found that Brophy died after two independent assaults and that it was not possible to determine which of the two assaults medically caused death, and acquitted all three of manslaughter - On appeal, the Crown alleged that the trial judge erred in law in analyzing the issue of causation - Counsel for the Maybins submitted that the act of Gains was an intervening cause which broke the chain of causation - The British Columbia Court of Appeal ordered a new trial for the Maybins - There was 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 - It would follow that their contribution to Brophy's death would be outside the de minimus range - See paragraphs 40 to 44.

Criminal Law - Topic 1312

Manslaughter - Causation - Brophy was at a pub, standing beside a pool table talking, when he moved one or two of the pool balls - The pool-players, Matthew and Timothy Maybin, confronted him - Timothy punched Brophy in the head - Matthew assisted his brother - Brophy fell face down on the pool table, unconscious - One of the doormen, Gains, punched Brophy in the head - Brophy died - Medical cause of death was a subarachnoid haemorrhage in the brain - The evidence from Timothy's expert forensic pathologist was that Gains had delivered the fatal blow, while the Crown's expert opined that it could have been the Maybins, Gains, or both - The trial judge concluded that he had to acquit all three - On appeal, the Crown submitted that the trial judge erred in limiting himself to the expert evidence in determining whether Gains was a factual cause of Brophy's death - Relying on the decision in Smithers, the Crown argued that the trial judge erred in failing to recognize that he could rely on his "common sense" - The British Columbia Court of Appeal dismissed the Crown's appeal of the acquittal of Gains - Given the trial judge's findings that Gains committed an independent assault and that Brophy died some time after that assault, the application of a common sense inference would not have made any difference - The trial judge found that he could not say that Gains' actions were a factual cause of death - An application of the principles found in Smithers would have made no difference to that finding - See paragraphs 45 to 51.

Cases Noticed:

R. v. Isaac, [1984] 1 S.C.R. 74; 51 N.R. 308, refd to. [para. 14].

R. v. Thatcher, [1987] 1 S.C.R. 652; 75 N.R. 198; 57 Sask.R. 113, refd to. [para. 14].

R. v. McMaster (R.A.) et al., [1996] 1 S.C.R. 740; 194 N.R. 278; 181 A.R. 199; 116 W.A.C. 199, refd to. [para. 14].

R. v. Nette (D.M.), [2001] 3 S.C.R. 488; 277 N.R. 301; 158 B.C.A.C. 98; 258 W.A.C. 98; 2001 SCC 78, consd. [paras. 21, 64].

R. v. Smithers, [1978] 1 S.C.R. 506; 15 N.R. 287, consd. [paras. 23, 47, 63].

R. v. Tower (T.J.) (2008), 261 N.S.R.(2d) 135; 835 A.P.R. 135; 76 W.C.B.(2d) 685; 2008 NSCA 3, refd to. [para. 30].

R. v. J.S.R. (2008), 239 O.A.C. 42; 237 C.C.C.(3d) 305; 2008 ONCA 544, consd. [paras. 32, 34, 72, 75].

R. v. Shilon (M.) (2006), 240 C.C.C.(3d) 401 (Ont. C.A.), consd. [paras. 36, 74, 77].

R. v. Sinclair (T.) (2009), 240 Man.R.(2d) 135; 456 W.A.C. 135; 2009 MBCA 71, consd. [paras. 36, 74, 78].

R. v. Pruden-Wilson - see R. v. Sinclair (T.).

R. v. Klassen (G.B.) (1997), 87 B.C.A.C. 45; 143 W.A.C. 45; 113 C.C.C.(3d) 97, refd to. [para. 40].

R. v. Cribbin (J.) (1994), 69 O.A.C. 366; 17 O.R.(3d) 548 (C.A.), refd to. [para. 68].

R. v. Pagett (1983), 76 Cr. App. Rep. 279 (C.A.), refd to. [paras. 74, 76].

R. v. Hallett, [1969] S.A.S.R. 141 (Aust. S.C. in banco), refd to. [para. 78].

R. v. Vezeau, [1977] 2 S.C.R. 277; 8 N.R. 235, refd to. [para. 83].

R. v. Sutton (K.M.), [2000] 2 S.C.R. 595; 262 N.R. 384; 230 N.B.R.(2d) 205; 593 A.P.R. 205; 2000 SCC 50, refd to. [para. 83].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 222(1), sect. 222(5) [para. 3]; sect. 234 [para. 2].

Authors and Works Noticed:

Boyle, Christine, Chun, Dorothy, and Grant, Isabelle, The Law of Homicide (1994), pp. 3-37, 38 [para. 29].

Brudner, Alan, Owning Outcomes: On Intervening Causes, Thin Skulls, and Fault-undifferentiated Crimes (1998), 11 Can. J.L. and Jurisprudence 89, p. 91 [para. 22].

Lafave, Wayne R., and Scott Jr., Austin W., Substantive Criminal Law (1986), p. 406 [para. 33].

Russell on Crime (11th Ed. 1958), p. 33-4 [para. 13].

Williams, Glanville L., Textbook of Criminal Law (2nd Ed. 1983), p. 391 [paras. 31, 72].

Counsel:

K. Madsen, for the appellant;

D.M. McKimm, Q.C., for the respondents, Matthew Leslie Maybin and Timothy Andrew Maybin;

R. Mulligan, Q.C., for the respondent, Buddha Sadu Gains.

This appeal was heard on April 14, 2010, at Victoria, British Columbia, by Finch, C.J.B.C., Ryan and Huddart, JJ.A., of the British Columbia Court of Appeal. The judgment of the Court of Appeal was delivered on November 25, 2010, at Vancouver, when the following opinions were filed:

Ryan, J.A. (Huddart, J.A., concurring) - see paragraphs 1 to 53;

Finch, C.J.B.C., dissenting - see paragraphs 54 to 86.