Chapter 03, Class 07

Liability of the Accused where there is More than One Cause of Death | The Special Test of Causation that Applies to First-Degree Murder

This causation principle (where there is more than one cause if death) applies to what genre of common law cases?

Culpable homicide

“Take their victims as they are“

The accused cannot point to their victims' physical weakness/impairment as an excuse/justification for their homicidal acts

**R. v Smithers (1977)**

Read up on the Case summary


1. Factual causation (but for)?
2. Legal causation (blameworthiness, voluntariness & foreseeability)?

1. **Factual** **Causation**: Even without Smithers' kick, Cobby still may vomited, but may not have died
2. **Legal** **Causation**: The consequence of Smithers' conduct was in fact foreseeable

The Smithers Test

A test of __factual__ causation: is the conduct of the accused a ==contributing cause that is outside the de minimis range== to the death of the victim?

**R. v Nette (2001)**

Read up on case summary


1. Factual causation (using the Smithers Test)?
2. Legal causation (voluntariness, blameworthiness & foreseeability)?

1. **Factual Causation**: Yes, the conduct of the accused (Nette) was a significant contributor to the death of the victim.
2. **Legal** **Causation**: It is foreseeable that the victim would have died if she was hog-tied and placed on the bed for hours on end without the accused notifying anyone of her situation, knowing fully well that the victim lived alone

What is the difference between the Smithers Test and the Nette Test?

The Smithers and the Nette Test __are the same test__ of factual causation. The term 'Smithers Test' was simply replaced in the early 2000s with the 'Nette Test' for definition-based clarity

The __Legal__ Causation Test of **First Degree Murder**

Also known as the *Harbottle Test*. The Crown must prove that ==the accused played a very active physical role in the killing,== which may be categorized as an __essential__, __substantial__ and __integral__ cause of death.

Difference between 1st degree murder, 2nd degree murder, and Manslaughter

* 1st Degree Murder - planned and deliberate
* 2nd degree Murder - unplanned but deliberate
* Manslaughter - unplanned and indeliberate/unintended

Significant exceptions to the test of causation that applies to First Degree Murder

*(i.e. if any of these situations occur, the accused is automatically charged with first degree murder)*

* Killing a police officer/peace officer/prison guard
* Death of a victim in the midst of a sexual assault
* Death of a victim in the midst of hijacking an aircraft
* Death of a victim during kidnapping and forcible confinement
* Death of a victim in the midst of hostage taking

**R. v Harbottle (1993)**

Read upon on case summary


1. Factual Causation (Nette Test)?
2. Legal Causation (1st Degree Murder Test)?

1. **Factual Causation:** In accordance with the Nette test, Harbottle's conduct (aiding) was a significant contributing cause to the death of the victim.
2. **Legal Causation**: Yes, Harbottle played a very active and physical role in the killing of the 17-year old victim.

In the case of a culpable homicide, the Smithers/Nette Test is to establish…

Factual Causation

In cases of first degree murder, the Harbottle Test is to establish…

Legal Causation

The Nette Test

A test of __factual__ causation: did the conduct of the accused constitute a ==significant contributing cause== to the death of the victim?