R. v. Stratton (M.), 218 NSR (2d) 23

Judge:Saunders, Oland and Hamilton, JJ.A.
Court:Nova Scotia Court of Appeal
Case Date:October 09, 2003
Jurisdiction:Nova Scotia
Citations:218 NSR (2d) 23;[2003] NSJ No 360 (QL);180 CCC (3d) 151;2003 NSCA 104;(2003), 218 N.S.R.(2d) 23 (CA);18 CR (6th) 282
 
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R. v. Stratton (M.) (2003), 218 N.S.R.(2d) 23 (CA);

 687 A.P.R. 23

MLB headnote and full text

Temp. Cite: [2003] N.S.R.(2d) TBEd. OC.049

Joey Robert Reid and Michael Gene Stratton (appellants) v. Her Majesty The Queen (respondent)

(CAC 179257)

Her Majesty The Queen (appellant) v. Joey Robert Reid and Michael Gene Stratton (respondents)

(CAC 179434; 2003 NSCA 104)

Indexed As: R. v. Stratton (M.) et al.

Nova Scotia Court of Appeal

Saunders, Oland and Hamilton, JJ.A.

October 9, 2003.

Summary:

Shortly after leaving a tavern, Stratton and the victim engaged in a fight. Stratton got the victim in a "sleeper hold" from behind. Reid, who was intoxicated, took a couple of staggering kicks at the victim, causing minimal harm. The victim was rendered unconscious. Everyone present panicked. An ill-fated decision was made to try CPR to resuscitate the victim. In fact, the CPR attempts (by four separate people) caused the victim's death by asphyxiation. Absent CPR, the victim, who suffered only superficial cuts and bruises, would not have died. Stratton and Reid were convicted by a jury of manslaughter.

The Nova Scotia Supreme Court, in a judgment reported (2002), 204 N.S.R.(2d) 372; 639 A.P.R. 372, assessing the moral blameworthiness of Stratton and Reid in this "near accident" case, imposed conditional sentences of two years less a day. Stratton and Reid appealed on the grounds that, inter alia, the trial judge erred in not adequately instructing the jury on the issue of intervening act and intervening cause as it related to the CPR procedure which, on the evidence, was the cause of death. The Crown appealed against the sentences imposed.

The Nova Scotia Court of Appeal allowed the conviction appeal and ordered a new trial on the ground that the trial judge misdirected the jury on intervening act and intervening cause. It was unnecessary to deal with the sentence appeal.

Criminal Law - Topic 1242

Culpable homicide - Elements (incl. causation) - Stratton rendered MacKay unconscious with a "sleeper hold" - Reid kicked MacKay several times, causing minimal harm - An ill-fated decision by four other persons to perform CPR on MacKay actually caused his death by asphyxiation - Absent CPR, MacKay, who suffered only superficial cuts and bruises, would not have died - Stratton and Reid were convicted by a jury of manslaughter - The Nova Scotia Court of Appeal ordered a new trial on the ground that the trial judge failed to adequately instruct the jury on the issue of intervening act and intervening cause as it related to the CPR procedure - The court stated that "intervening causes do constitute a unique category of case such that in circumstances like these where ... the failed attempts at CPR clearly interrupted and therefor separated the acts of Stratton and Reid from MacKay's ultimate death, the trial judge was obliged to give the jury a clear and specific instruction with respect to the intervening events. It was critical that the jury understood their obligation to consider whether or not any independent, intervening and therefore exculpatory factors occurred after the two accused's acts, thereby severing the link in the chain which tied them to MacKay's death." - The court set out an appropriate jury charge, which provided the jury with examples of situations where the law recognized as legitimate, intervening and exculpatory events which would absolve an accused charged with causing a death from criminal liability - Specifically, the jury should have been directed to resolve whether the failed CPR attempts severed the causal link between the accused's unlawful acts and the death, rendering their acts no longer a significant contributing cause of death.

Criminal Law - Topic 1245

Culpable homicide - Unlawful act - Jury charge - [See Criminal Law - Topic 1242 ].

Criminal Law - Topic 1312

Manslaughter - Causation - [See Criminal Law - Topic 1242 ].

Criminal Law - Topic 1314

Manslaughter - Jury charge - [See Criminal Law - Topic 1242 ].

Cases Noticed:

R. v. Nette (D.M.) (2001), 277 N.R. 301; 158 B.C.A.C. 98; 258 W.A.C. 98; 158 C.C.C.(3d) 486 (S.C.C.), appld. [para. 39].

R. v. Smithers, [1978] 1 S.C.R. 506; 15 N.R. 287, refd to. [para. 47].

R. v. Harbottle (J.), [1993] 3 S.C.R. 306; 157 N.R. 349; 66 O.A.C. 35, refd to. [para. 47].

R. v. Hallett, [1969] S.A.S.R. 141 (Aust. S.C. in banco), refd to. [para. 63].

R. v. Kitching (1976), 32 C.C.C.(2d) 159 (Man. C.A.), dist. [para. 77].

R. v. Torbiak (1978), 40 C.C.C.(2d) 193 (Ont. C.A.), dist. [para. 77].

R. v. MacCallum, [1990] O.J. No. 3158 (Dist. Ct.), dist. [para. 77].

R. v. Pangowish (S.J.) et al. (2003), 177 B.C.A.C. 219; 291 W.A.C. 219 (C.A.), dist. [para. 78].

R. v. Nugent (1988), 84 N.S.R.(2d) 191; 213 A.P.R. 191 (C.A.), dist. [para. 93].

R. v. Hasslam (1990), 56 C.C.C.(3d) 491 (B.C.C.A.), refd to. [para. 94].

R. v. More and Melville (1959), 124 C.C.C. 140 (B.C.C.A.), refd to. [para. 94].

R. v. Levy (1991), 44 O.A.C. 5; 62 C.C.C.(3d) 97 (C.A.), refd to. [para. 94].

Counsel:

Laurel Halfpenny-MacQuarrie, for the Crown;

Kevin Coady, Q.C., for Joey Robert Reid;

Anne MacLellan Malick, Q.C., for Michael Gene Stratton.

This appeal was heard on May 29, 2003, at Halifax, N.S., before Saunders, Oland and Hamilton, JJ.A., of the Nova Scotia Court of Appeal.

On October 9, 2003, Saunders, J.A., delivered the following judgment for the Court of Appeal.

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