R. v. Lozada, 2023 ONCA 221, 2024 SCC 18 (40701)(40709)

“L and R were involved in a physical altercation between two groups of people. The victim was stabbed in the heart and died. L and R did not inflict the fatal stab wound and there was no evidence that they knew or foresaw that any person in their group had a knife or that the victim would be stabbed. At L and R’s jury trial, the Crown advanced two theories of party liability for manslaughter: as co‑principals under s. 21(1)(a) of the Criminal Code and as aiders under s. 21(1)(b). L and R were convicted of manslaughter. The majority of the Court of Appeal dismissed their appeals. The dissenting judge would have allowed the appeals and ordered a new trial, on the basis that the trial judge misdirected the jury in his instructions on causation in the context of co‑principal liability.”

The SCC (3:2) dismissed the appeals. 

Justice Moreau wrote as follows (at paras. 5, 22-25, 28-29):

“I am essentially in agreement with the majority of the Court of Appeal that, on a reading of the jury instructions and the trial judge’s answers to the jury’s questions as a whole, the jury was accurately instructed on the issue of causation. The instructions conveyed the proper test for causation: whether the particular appellant’s conduct was a significant contributing cause of death. Moreover, on the particular facts of this case, the trial judge properly equipped the jury with appropriate analytical tools described in R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30, to assist the jury in determining whether the stabbing could be considered to be an intervening act that would absolve the appellants of legal responsibility for manslaughter.


 

The functional approach to appellate review of jury instructions requires that the charge be read as a whole (Abdullahi, at para. 35). As the trial judge explained, accepting that the appellants did not know or foresee that anyone in their group had a knife would not force a conclusion on legal causation. The jury was broadly instructed to consider whether and how the conduct of the appellants contributed to Mr. Khalid’s death or whether the fatal act flowed reasonably from that conduct — which is one way that Maybin defines what it means for the general nature of an intervening act to be reasonably foreseeable (para. 38). Read in context, the impugned statements would not have conveyed to the jury that it could have concluded that the stabbing did not break the chain of causation simply because the continuation of the assaults was reasonably foreseeable if it did not also accept that the continuation of the assaults was of the same general nature as the stabbing, or that the stabbing flowed reasonably from the appellants’ conduct. As Doherty J.A. reasoned for the majority of the Court of Appeal, it should not be assumed that “a reasonably intelligent juror would . . . ignore the rest of the causation instructions if satisfied that the risk of non-trivial bodily harm was foreseeable at the time of the actions of [the appellants]” (para. 196).

Causation is “case-specific and fact-driven” (Maybin, at para. 17). Trial judges must be accorded “the flexibility to put issues of causation to the jury in an intelligible fashion that is relevant to the circumstances of the case” (Nette, at para. 72). In this case, there was evidence that would have supported the conclusion that the fatal stabbing was of the same general nature as the violent assaults that were underway. “Mr. Khalid sustained multiple lacerations, abrasions and blunt force injuries to multiple parts of his body from the blows he received” after being attacked by several people (C.A. reasons, at para. 163, per Paciocco J.A.). There was evidence that a glass bottle was used in the course of the earlier altercation (C.A. reasons, at para. 5). As the jury could have reasoned that the reasonable foreseeability of continuing assaults, and the accompanying non-trivial bodily harm, was a factor proving legal causation, the trial judge did not inaccurately instruct the jury by telling it that reliance on this factor “may be enough”.

Moreover, Maybin does not structure the jury’s reasonable foreseeability analysis by first requiring it to characterize the intervening act and then ask whether that type of act was reasonably foreseeable. Such an approach risks undermining Maybin’s holding that the specific intervening act need not be reasonably foreseeable (see paras. 34-35). While “[s]ome degree of specificity” about the nature of the intervening act must have been reasonably foreseeable, there is no requirement for objective foreseeability of the “precise future consequences” of the accused’s conduct (paras. 37-38). It is useful to recall that in Maybin, the Court concluded that it would be too specific to examine the foreseeability of the “bouncer’s assault of the unconscious victim” (paras. 39-40). Rather, the inquiry more broadly concerned the reasonable foreseeability of “interventions of other patrons and bar staff” (para. 41). Similarly, Jamal J.’s suggestion that jurors could have characterized the general nature of the intervening act as “assault with a weapon” is in my view too narrow a formulation, and inviting the jury to first characterize the intervening act could generate confusion (see para. 48). With respect to the reasonable foreseeability analytical aid, Maybin only requires that the jury consider whether the general nature of the intervening acts and accompanying risk of harm was reasonably foreseeable at the time of the accused’s unlawful acts, or whether the intervening acts flowed reasonably from the accused’s conduct.

In sum, the trial judge’s legal causation instructions conveyed the correct overall test and focused the jury’s attention on each appellant’s contribution to Mr. Khalid’s death. The trial judge’s two statements that it “may be enough” to establish legal causation if the continuation of assaults on Mr. Khalid was reasonably foreseeable should be understood in the context of the full instructions. The jury would not have found this factor to be adequate to establish legal causation without also accepting that the continuation of assaults was of the same general nature as the stabbing, or that the stabbing flowed reasonably from the appellants’ conduct.




The possibility of an intervening act occurring in the context of a group assault was contemplated by this Court in R. v. Strathdee, 2021 SCC 40, at para. 4:

  • Joint/co‑principal liability flows whenever two or more individuals come together with an intention to commit an offence, are present during the commission of the offence, and contribute to its commission. In the context of manslaughter, triers of fact should focus on whether an accused’s actions were a significant contributing cause of death, rather than focusing on which perpetrator inflicted which wound or whether all of the wounds were caused by a single individual. In the context of group assaults, absent a discrete or intervening event, the actions of all assailants can constitute a significant contributing cause to all injuries sustained. [Emphasis added.]

The causation inquiry is case-specific and fact-driven. There is no single test or measure for determining whether a particular act has broken the chain of causation. The issue in considering joint liability as co-principals under s. 21(1)(a) is whether the unlawful acts of the accused were a significant contributing cause of the victim’s death (Maybin, at paras. 18-29). Strathdee leaves open the prospect of an instruction addressing “a discrete or intervening event” even in the case of co-participants in a group assault.”