Smithers v. The Queen
Encyclopedia
R. v. Smithers, [1978] 1 S.C.R. 506 is a leading Supreme Court of Canada
decision on determining criminal causation in an offence of manslaughter
. The Court held that the Crown must show that the accused's acts were a "contributing cause of death outside of the de minimis
range." In practice, this test applied to all criminal offences requiring proof of causation.
After the game Smithers waited outside the rink for Cobby to leave. When Cobby came out Smithers chased him and was grabbed by at least 3 of Cobby's friends, Smithers grabbed Cobby's jacket and kicked Cobby once in the stomach area. Immediately Cobby fell to the ground and started to gasp for air. Cobby soon passed out and died shortly afterwards. It was discovered that he died from inhaling vomit after being kicked due to a rare condition in which his epiglottis
failed. Although Smithers was unsure if the kick even landed (there were no marks on Cobby), he was still responsible.
Smithers was charged for manslaughter under section 205 of the Criminal Code (now section 222) for "caus[ing] the death of a human being". In his defence, Smithers argued that it was the epiglottis condition that caused death, not the blow.
The issue before the Supreme Court was whether the kick was a sufficient cause of the death to attract criminal liability.
A unanimous Court held that Smithers was guilty of causing death of a human being. The decision was written by Justice Dickson
.
from a 1943 case note on the English Larkin case, where it was stated that "[t]here are many unlawful acts which are not dangerous in themselves and are not likely to cause injury which, nevertheless if they cause death, render the actor guilty of culpable homicide ... In the case of so-called intentional crimes where death is an unintended consequence
the actor is always guilty of manslaughter at least."
The question Dickson considered was what degree of causation is required to prove guilt. Where consequences need not be intended such as manslaughter, he proposed the degree of contribution to the cause of death need only pass a de minimis test. That is, the Crown need only show that the amount contributed to the cause of death be more than trivial.
Dickson also reaffirmed the application of the thin skull doctrine in homicide, where the fact that Cobby was susceptible to failure of the epiglottis should not absolve Smithers from liability. Consequently, since the kick may have killed Cobby, its contribution to his death was more than trivial and so Smithers is criminally liable.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
decision on determining criminal causation in an offence of manslaughter
Manslaughter
Manslaughter is a legal term for the killing of a human being, in a manner considered by law as less culpable than murder. The distinction between murder and manslaughter is said to have first been made by the Ancient Athenian lawmaker Dracon in the 7th century BC.The law generally differentiates...
. The Court held that the Crown must show that the accused's acts were a "contributing cause of death outside of the de minimis
De minimis
De minimis is a Latin expression meaning about minimal things, normally in the locutions de minimis non curat praetor or de minimis non curat lex .In risk assessment it refers to a level of risk that is too small to be concerned with...
range." In practice, this test applied to all criminal offences requiring proof of causation.
Background
On February 18, 1973, Smithers, a black teen, played in a hockey match against a team including Barrie Cobby, a white teen, in a Mississauga rink. During the game, Smithers was subject to numerous racial slurs by Cobby. Evidence given by numerous witnesses at the trial indicated both had a dislike for each other behaviour and Cobby had often been using racial slurs toward Smithers. During their final game, Cobby was given a penalty for spearing Smithers during the game while Cobby was in the penalty box Smithers scored a goal and laughed in Cobby's direction. Cobby shouted further racial slurs and Smithers threatened Cobby that he was going to "get him" if Cobby did not apologize for making the ongoing racial insults.After the game Smithers waited outside the rink for Cobby to leave. When Cobby came out Smithers chased him and was grabbed by at least 3 of Cobby's friends, Smithers grabbed Cobby's jacket and kicked Cobby once in the stomach area. Immediately Cobby fell to the ground and started to gasp for air. Cobby soon passed out and died shortly afterwards. It was discovered that he died from inhaling vomit after being kicked due to a rare condition in which his epiglottis
Epiglottis
The epiglottis is a flap that is made of elastic cartilage tissue covered with a mucous membrane, attached to the entrance of the larynx. It projects obliquely upwards behind the tongue and the hyoid bone, pointing dorsally. The term, like tonsils, is often incorrectly used to refer to the uvula...
failed. Although Smithers was unsure if the kick even landed (there were no marks on Cobby), he was still responsible.
Smithers was charged for manslaughter under section 205 of the Criminal Code (now section 222) for "caus[ing] the death of a human being". In his defence, Smithers argued that it was the epiglottis condition that caused death, not the blow.
The issue before the Supreme Court was whether the kick was a sufficient cause of the death to attract criminal liability.
A unanimous Court held that Smithers was guilty of causing death of a human being. The decision was written by Justice Dickson
Brian Dickson
Robert George Brian Dickson, , commonly known as Brian Dickson, was appointed Chief Justice of Canada on April 18, 1984. He retired on June 30, 1990 and died October 17, 1998.-Career:...
.
Opinion of the court
Dickson adopted the comments of G. Arthur MartinGoldwyn Arthur Martin
Goldwyn Arthur Martin, CC, QC was a justice of the Court of Appeal for Ontario and one of the most prominent experts in criminal law in Canada....
from a 1943 case note on the English Larkin case, where it was stated that "[t]here are many unlawful acts which are not dangerous in themselves and are not likely to cause injury which, nevertheless if they cause death, render the actor guilty of culpable homicide ... In the case of so-called intentional crimes where death is an unintended consequence
Unintended consequence
In the social sciences, unintended consequences are outcomes that are not the outcomes intended by a purposeful action. The concept has long existed but was named and popularised in the 20th century by American sociologist Robert K. Merton...
the actor is always guilty of manslaughter at least."
The question Dickson considered was what degree of causation is required to prove guilt. Where consequences need not be intended such as manslaughter, he proposed the degree of contribution to the cause of death need only pass a de minimis test. That is, the Crown need only show that the amount contributed to the cause of death be more than trivial.
Dickson also reaffirmed the application of the thin skull doctrine in homicide, where the fact that Cobby was susceptible to failure of the epiglottis should not absolve Smithers from liability. Consequently, since the kick may have killed Cobby, its contribution to his death was more than trivial and so Smithers is criminally liable.