Smithers v. R., [1978] 1 SCR 506

Supreme Court of Canada

Smithers v. R., [1978] 1 S.C.R. 506

Date: 1977-05-17

Paul Douglas Smithers (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1977: February 10, 11; 1977: May 17.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Manslaughter—Causation—Assault and kicking of deceased—Unlawful act—Death resulting from asphyxia due to deceased choking on vomit—Malfunctioning epiglottis—Criminal Code, ss. 205(1), 207, 208.

Evidence—Medical evidence—Evidence as to cause of death—Death due to vomiting and deceased choking—Vomiting probably caused by a kick—Malfunctioning epiglottis—Criminal Code, ss. 205(1), 207, 208.

Appellant and deceased both young hockey players were the leading players in two competing teams. During the game, which was rough, the players were aggressive and feelings ran high. Appellant was subjected to racial insults by the deceased and other members of the opposing team. Following a heated exchange of profanities appellant and deceased were both ejected from the game. Appellant however indicated that he intended to continue the confrontation and made repeated threats. The deceased was apprehensive and left the arena at the end of the game. Outside, appellant caught up with him, attacked him and, though held back, managed to kick him in the abdomen. Death resulted shortly thereafter. The medical evidence indicated that the deceased had died from asphyxia from aspiration of foreign materials due to vomiting and that the malfunction of the epiglottis was probably caused by the kick but could have resulted from fear. Appellant testified he had acted in self-defence but was convicted of manslaughter.

Appellant appealed unsuccessfully and on further appeal, three grounds were urged, first, that the trial judge failed to delineate clearly the issue as to the cause of death of the deceased and to relate the evidence to that issue; second, that the Court of Appeal erred in holding that there was evidence on the basis of which the jury was entitled to find that it had been established

[Page 507]

beyond a reasonable doubt that the kick caused the death; and, third, that the charge to the jury on the matter of self-defence amounted to misdirection.

Held: The appeal should be dismissed.

The issue as to the cause of death was properly and sufficiently delineated by the trial judge. The assault by appellant on the deceased was clearly an unlawful act and there was cogent evidence to which the jury could apply common sense in considering the issue of causality. The jury was not limited to medical evidence but had the benefit of uncontradicted evidence of lay witnesses that appellant kicked the deceased in the stomach area, that this kick caused immediate distress and that the death followed in minutes. There was therefore evidence upon which the jury was entitled to convict.

While the medical experts did not speak in terms of absolute certainty the weight to be given to that expert evidence was a matter for the jury which was entitled to consider all of the evidence expert and lay. There was substantial evidence before the jury indicating that the kick was at least a contributing cause of death, outside the de minimis range, and that was all that the Crown was required to establish. It was immaterial that the death was in part caused by a malfunctioning epiglottis to the malfunction of which appellant may, or may not, have contributed. A person commits homicide when directly or indirectly, by any means, he causes the death of a human being and it was therefore no defence that appellant did not expect that death would ensue. Finally there could be no criticism of the judge’s charge on self-defence. For some considerable time before the incident appellant alone was the aggressor.

Walker v. Bedard and Snelling, [1945] O.W.N. 120; Ewing v. Goode (1897), 78 Fed. 442; State v. Minton (1952), 68 S.E. (2d) 844; R. v. Larkin (1942), 29 Cr. App. R. 18; R. v. Cato (1975), 62 Cr. App. R. 41; R. v. Garforth, [1954] Crim. L. Rev. 936; R. v. Blaue, [1975] 1 W.L.R. 1411; R. v. Nicholson (1926), 47 C.C.C. 113 referred to.

APPEAL from a judgment of the Court of Appeal for Ontario[1] dismissing an appeal from a

[Page 508]

conviction for manslaughter. Appeal dismissed.

W.R. McMurtry, Q.C., and P.L. Seitz, for the appellant.

Archie Campbell and J. Douglas Ewart, for the respondent.

The judgment of the Court was delivered by

DICKSON J.—This is an appeal from a judgment of the Court of Appeal for Ontario dismissing an appeal brought by the appellant from his conviction by judge and jury on a charge of manslaughter. The indictment alleges that the appellant did unlawfully kill Barrie Ross Cobby by kicking him.

On February 18, 1973 a hockey game was played between the Applewood Midget Team and the Cooksville Midget Team at the Cawthra Park Arena in the Town of Mississauga. The leading player on the Applewood team was the deceased, Barrie Cobby, sixteen years of age; the leading player on the Cooksville team was the appellant. The game was rough, the players were aggressive and feelings ran high. The appellant, who is black, was subjected to racial insults by Cobby and other members of the Applewood team. Following a heated and abusive exchange of profanities, the appellant and Cobby were both ejected from the game. The appellant made repeated threats that he was going to “get” Cobby. Cobby was very apprehensive and left the arena at the end of the game, some forty-five minutes later, accompanied by eight or ten persons including friends, players, his coach and the team’s manager. The appellant repeated his threats and challenges to fight as the group departed. Cobby did not take up the challenge. Instead, he hurried toward a waiting car. The appellant caught up with him at the bottom of the outside steps and directed one or two punches to Cobby’s head. Several of Cobby’s team mates grabbed the appellant and held him. Cobby, who had taken no steps to defend himself, was observed to double up and stand back while the appellant struggled to free himself from those holding him. While Cobby was thus bent over, and approximately two to four feet from the appellant, the appellant delivered what was described as a hard,

[Page 509]

fast kick to Cobby’s stomach area. Only seconds elapsed between the punching and the kick. Following the kick, Cobby groaned, staggered towards his car, fell to the ground on his back, and gasped for air. Within five minutes he appeared to stop breathing. He was dead upon arrival at the Mississauga General Hospital.

Dr. David Brunsdon, who performed an autopsy, testified that in his opinion death was due to the aspiration of foreign materials present from vomiting. He defined aspiration as the breathing, or taking in, of foreign material through the windpipe into the lungs. It appears from the medical evidence that aspiration is generally due to barbiturate overdosage, alcohol intoxication, motor vehicle accidents or epilepsy. One medical witness testified to the possibility of spontaneous aspiration, whereby foreign material may be aspirated without any precipitating cause. This witness had seen three such cases out of the 900 to 1000 cases of aspiration which he had experienced. In none of the three cases was the aspiration preceded by a blow. The consensus among the doctors was that spontaneous aspiration was a rare and unusual cause of death in the case of a healthy teenager such as Cobby. Normally, when a person vomits the epiglottis folds over to prevent the regurgitated stomach contents from entering the air passage. In the instant case this protective mechanism failed.

In the Court of Appeal for Ontario three points were raised: (i) whether there was evidence of a causal connection between the kick and the death, upon which the jury was entitled to convict; (ii) whether the verdict was unreasonable; and (iii) whether the charge of the trial judge adequately delineated the essential issues and related the evidence to them. The majority of the Court (Evans and Martin JJ.A.) concluded that the issue of causation fell to be determined by the jury on the whole of the evidence, not the medical evidence alone. It was held that the charge, viewed in its totality, was adequate and contained no error in law. Mr. Justice Houlden, dissenting, noted that three doctors gave expert medical evidence for the

[Page 510]

prosecution as to the kick and the vomiting and all three doctors agreed that the kick probably caused the vomiting though they could not positively state that it did. He agreed that there was evidence upon which the jury could find beyond a reasonable doubt the kick caused Cobby’s death but, in his opinion, the trial judge erred in failing to make clear to the jury the Crown had to prove beyond a reasonable doubt that the kick caused the vomiting. In his view, by dealing generally with the law concerning manslaughter, assault and self-defence and then setting out at length the Crown and defence theories, the trial judge confused the jury. The judgment of the Ontario Court of Appeal dismissing the appeal specified the point of dissent in these terms: “the trial judge failed to clearly delineate the issue as to the cause of death of the deceased Cobby and to relate the evidence to that issue”.

The ground of dissent in the Ontario Appeal Court forms the first ground of appeal in this Court. Counsel for the appellant submits that the trial judge, in emphasizing the act of assault as a constituent element in the crime of manslaughter, did not make it clear to the jury that the act of assault must also cause the death of the deceased and, secondly, that in giving his summation of the Crown and defence theories, the trial judge referred to the issue of causation as defence counsel’s argument that the cause of death had not been proven beyond a reasonable doubt. It is contended that the effect of these remarks was to minimize this issue in the minds of the jury. The jury was never instructed, it is said, that as a matter of law one of the issues on which they had to be satisfied beyond a reasonable doubt was that the kick caused the vomiting.

[Page 511]

The trial judge commenced the general part of his charge with instruction as to onus of proof, presumption of innocence and reasonable doubt. He moved then to a discussion of circumstantial evidence and related that subject to what he referred to as “an important area, the cause of death,” adding “here no one saw inside Barrie Cobby’s throat, or stomach or his lungs and here the evidence is circumstantial and indirect”. Later in the charge, while discussing intent in relation to manslaughter, the trial judge said:

Therefore, in this case if you find the accused acted unlawfully in kicking Cobby, and that death resulted therefrom, it is immaterial whether the accused Intended, or did not intend to cause death.

In giving his general directions on the law of manslaughter the trial judge stated:

...manslaughter is the causing of death of a human being by an unlawful act, but not an intentional act.

Later he added:

...any improper use of force, which is unlawful, if death results is manslaughter.

The following passage of the charge is attacked by the appellant on the ground that it failed to emphasize that the act of assault must also cause the death of the deceased:

...So that one difference between manslaughter and the act of assault is that in manslaughter the intent to kill is not necessary, whereas in assault the intent to apply force is necessary. Because a person commits assault without consent when he applies force intentional to the person of the other, directly or indirectly. So once you have an assault, the unlawful application of force, and a person dies as a result thereof, whether it is intended that he die or not, then you have the crime of manslaughter.

It seems to me that this criticism is unwarranted because the judge stated plainly that in order to constitute the crime of manslaughter there must

[Page 512]

not only be an assault but a person must die as a result thereof.

The judge again adverted to the cause of death during a discussion of the mouth-to-mouth resuscitation and heart massage carried out by the ambulance attendants, and the effect of ss. 207 and 208 of the Code. He said:

At any rate, I thought I should read those sections, so that you can on this law and on the evidence probably disregard anything that took place afterwards as being the cause of death in so far as the legal implications are concerned.

During his discussion on the theory of the Crown the following rather lengthy, but important, passage appears:

The second part of the Crown’s case deals with the cause of death, and it is the allegation of the Crown that it has proven beyond a reasonable doubt that death was as a result of the unlawful act. The Crown’s theory is that as a result of the kick alone, by the combined factor of the kick and fear that Cobby brought up, he did not eject the food from his mouth, but instead because of some malfunction at that time of the Epiglottis, the air passage was not closed off and instead of swallowing the food contents that had come up he breathed some in to his lungs and died of asphyxiation, that is by smothering, or lack of breath.

Although most of the above were seen and related by witnesses, as I have indicated earlier, what actually happened inside Barrie Cobby was of course not seen, so that here we have the application of circumstantial evidence, as I explained earlier, that is, in this particular matter the Crown must show that the events that took place inside the deceased were linked up to the kick, that they are consistent with the kick being the cause of death and inconsistent with any other rational explanation.

In support of this, the Crown says that the deceased was a healthy young man of 17 at the time of the kick, that immediately prior to that he had come down the stairway and was walking, and acting in a normal manner, that he was able to react to the hand blow by covering up, and that it was the kick that felled him. The Crown further suggest, in this regard, that the deceased had no propensity to vomit, that he had only played ten minutes in the game, that he had taken no drugs, or alcohol, and only a minimal amount of Aspirin

[Page 513]

which was not present in the stomach on later analysis. That if the deceased was nervous, or frightened, this was not the main cause of his death, but only a contributing factor, and the accused has to take his victim as he finds him, and this principle in law is known as the thin skull principle, and Counsel has given you a. dissertation on thin skull, and just by way of another example. If a person goes to rob someone, and he strikes him on the head while robbing him, and he just intends a light tap, but the man has a thin skull and suffers shall we say severe brain injury, it is not a defence for the robber to say he didn’t know the man had a thin skull, and that no one else, or few others, would have had such, would have received a brain injury from that tap. A person takes his victim as he finds him. The severity in this particular case or the kick is for you to decide upon. But even if it was not severe, if you find it caused death, the severity is immaterial, but the severity may be something for you to consider as to whether or not it was the cause of death.

The Crown says that this is not a case of spontaneous aspiration, and a definition was given to you of inhaling into the windpipe of stomach contents by the individual and usually matter that had been vomited up, with no underlying reason and it often results in death, and rather than spontaneous aspiration, the Crown’s theory is the symptoms, and this is what one would expect as the result of the kick.

The first paragraph and the final paragraph of the passage merit particular attention. It is true they appear during that part of the charge in which the theory of the Crown is under consideration but the effect is to place squarely before the jury the issue as to the cause of death and to relate the evidence to that issue. Opinions may differ as to the sequence to be followed by a trial judge in covering the many matters which must be covered in the course of any jury charge. There is no hard and fast rule in this regard, so long as the jury members know, what it is they are called upon to decide and that, generally speaking, though not invariably, they receive guidance in relating the evidence to the issues.

Further instruction as to causation was given to the jury, while the theory of the defence was being discussed, in these passages:

[Page 514]

Firstly, the Defence says that the Crown, has not proven its case beyond a reasonable doubt, and that case is divided into two parts. One, in dealing with whether there was an unlawful act, and second, whether death was as a result of the alleged unlawful act.

The theory of the Defence is that the Crown has failed in both these areas.

The other aspect of the Defence theory has to do with the medical evidence. Namely, that the Crown has not proven beyond a reasonable doubt that the accused died as a result of the kick. Mr. Maloney has related the evidence of the doctors in some detail, and I don’t propose to cover the same ground. The gist of his argument was that the strongest medical evidence was in favour of the Crown was to speak of probabilities and that this falls short of proof beyond a reasonable doubt, and that Dr. Smith said that he could not give an opinion that the cause was the kick. An opinion beyond a reasonable doubt, and this evidence was given at the preliminary enquiry and there was cross-examination not only of Dr. Smith on this matter, but also of Dr. Brunsdon, and Mr. Maloney says if the doctors can’t say that the kick was the cause of death, beyond a reasonable doubt, how can you make a finding of casual connection that you are required to do beyond the required reasonable doubt. [Emphasis added.]

In concluding his charge the judge again spoke of reasonable doubt and related that concept to causation. He said:

I have instructed you as to the meaning of reasonable doubt, and I repeated it for you earlier, and it is for you to decide on all the evidence if there is a reasonable doubt in your minds as to the cause of death. If there is, you must acquit, if there isn’t, and you also find the kick was unlawful—I am sorry—it is for you to decide on all the evidence if there is a reasonable doubt in your minds as to the cause of death. If there is you must acquit, and if there isn’t you must also consider the kick, whether or not it was unlawful. If you find the Crown has satisfied you beyond a reasonable doubt that the kick was unlawful and that it was the cause of death, satisfied on both those matters, then it is your duty to convict.

I agree with the majority view in the Ontario Court of Appeal that the issue as to the cause of death was properly and sufficiently delineated by the trial judge. It was not an unduly complicated issue. The assault by the appellant upon the

[Page 515]

deceased boy was undoubtedly an unlawful act. The principal issue was whether the appellant had committed homicide by directly or indirectly, by any means, causing the death of Cobby and whether such homicide was culpable for the reason that it was caused by an unlawful act. The Crown quite properly chose to establish causation principally through medical evidence and the doctors, men of high professional standing, understandably were disinclined to speak in absolute terms.

Dr. Brunsdon testified as to the effect of a sudden blow in the abdominal area. He said:

I couldn’t say always, but it certainly I think, would be predisposed to regurgitation. I am certainly not going to say it would happen in every case, but I think it could be predisposed to.

During cross-examination, Dr. Brunsdon used the expressions “very possible” and “very probable” to describe the cause and effect of the kick and the vomiting. As to the relationship of the kick and aspiration, he said:

I can amplify that a bit. It is a rare condition, but the kick would have made it more likely to aspirate.

The following passage appears in the testimony of Dr. Hillsdon Smith, Professor of Forensic Pathology at the University of Toronto:

I have already given in evidence that fear by itself can cause vomiting, a kick by itself can cause vomiting. The two together have simply a greater effect than either of those singly.

The jury was not limited to the evidence of the medical experts. In considering the issue of causation the jury had the benefit of uncontradicted evidence of a number of lay witnesses to the effect that the appellant kicked the deceased boy in the stomach area, that the kick was followed by immediate distress, and that the death occurred within minutes. This was cogent evidence to which the jury could apply common sense in considering

[Page 516]

the issue of causality. In my opinion, the first gound of appeal cannot be maintained.

The second ground, not unrelated to the first ground, is that the Court of Appeal erred in holding that there was evidence on the basis of which the jury was entitled to find that it had been established beyond a reasonable doubt that the kick caused the death. This broad question is unfortunately phrased, in that it leaves doubt whether the issue raised is one of sufficiency of evidence, a question of fact to which the jurisdiction of this Court does not extend, or an entire absence of evidence upon which a finding could be made that the kick caused the death, a question of law. The appellant’s factum tends to remove the uncertainty by subsuming, within the broad question, three narrower questions. The first of these is whether the jury were restricted to a consideration of the expert medical evidence in making their determination on the issue of causation. It is conceded that the jury was entitled to consider all of the evidence, expert and lay, in their deliberations with respect to the issue of causation but on the precise question of whether or not the kick caused the vomiting or the aspiration, it is contended the jury was restricted to the medical evidence. It seems to me to be a novel proposition, subversive of the usual jury procedure, that on a particular issue the jury should be denied the evidence of certain witnesses. I have difficulty also in reconciling the concession that the jury is entitled to consider all of the evidence on the issue of causation but something less than all the evidence when considering the only causative questions in the case, namely, whether the kick caused the vomiting and whether the kick caused the aspiration. In support of his submission counsel cited Walker v. Bedard and Snelling[2]. That was a civil case tried by Lebel J. without a jury in which damages were claimed against a surgeon and an anaesthetist for the death of a patient following the injection of nupercaine into the spinal canal. Lebel J. quoted with approval a passage from the

[Page 517]

American decision in Ewing v. Goode[3] in which the following words appear:

But when a case concerns the highly specialized art of treating an eye for cataract, or for the mysterious and dread disease of glaucoma, with respect to which a layman can have no knowledge at all, the court and jury must be dependent on expert evidence. There can be no other guide, and, where want of skill or attention is not thus shown by expert evidence applied to the facts, there is no evidence of it proper to be submitted to the jury.

The other case cited was State v. Minton[4] in which the death of the deceased was caused by a pistol bullet fired by one of the defendants, and a resulting hemorrhage. The judgment contains these words:

The State did not undertake to show any causal relation between the wound and the death by a medical expert. For this reason, the question arises whether the cause of death may be established in a prosecution for unlawful homicide without the use of expert medical testimony. The law is realistic when it fashions rules of evidence for use in the search for truth. The cause of death may be established in a prosecution for unlawful homicide without the use of expert medical testimony where the facts in evidence are such that every person of average intelligence would know from his own experience or knowledge that the wound was mortal in character.

There is no proper foundation, however, for a finding by the jury as to the cause of death without expert medical testimony where the cause of death is obscure and an average layman could have no well grounded opinion as to the cause.

In my opinion, neither of the cases cited lends any support to the proposition sought to be advanced by the appellant. No useful comparison is possible between an operation for glaucoma and the circumstances in the case at bar. In Minton’s case the causal relation between the wound and the death was established without medical evidence.

[Page 518]

It is important in considering the issue of causation in homicide to distinguish between causation as a question of fact and causation as a question of law. The factual determination is whether A caused B. The answer to the factual question can only come from the evidence of witnesses. It has nothing to do with intention, foresight or risk. In certain types of homicide jurors need little help from medical experts. Thus if D shoots P or stabs him and death follows within moments, there being no intervening cause, jurors would have little difficulty in resolving the issue of causality from their own experience and knowledge.

Expert evidence is admissible, of course, to establish factual cause. The work of expert witnesses in an issue of this sort, as Glanville Williams has pointed out (Causation in Homicide [1957] Crim. L.R. 429 at p. 431), is “purely diagnostic and does not involve them in metaphysical subtleties”; it does not require them to distinguish between what is a “cause,” i.e. a real and contributing cause of death, and what is merely a “condition,” i.e. part of the background of the death. Nor should they be expected to say, where two or more causes combine to produce a result, which of these causes contributes the more.

In the case at bar, the Crown had the burden of showing factual causation, that beyond a reasonable doubt the kick caused the death. In my view, the trial judge did not err in failing to instruct the jury that in determining that issue they could consider only the medical evidence. The issue of causation is for the jury and not the experts. The weight to be given to the evidence of the experts was entirely for the jury. In the search for truth, the jury was entitled to consider all of the evidence, expert and lay, and accept or reject any part of it. Non-medical testimony is available to both the Crown and the accused, and in the instant case, lay evidence was vital to the defence raised by the appellant. That evidence tended to show that all the circumstances preceding the kick were such as to create in the deceased boy a highly

[Page 519]

emotional state which might well have given rise to spontaneous vomiting, unassociated with the kick.

The second sub-question raised is whether there was evidence on the basis of which the jury was entitled to find that it had been established beyond a reasonable doubt that the kick caused the death. In answer to this question it may shortly be said that there was a very substantial body of evidence, both expert and lay, before the jury indicating that the kick was at least a contributing cause of death, outside the de minimis range, and that is all that the Crown was required to establish. It is immaterial that the death was in part caused by a malfunctioning epiglottis to which malfunction the appellant may, or may not, have contributed. No question of remoteness or of incorrect treatment arises in this case.

I should like to adopt two short passages from a Case Note on R. v. Larkin[5] by G.A. Martin, as he then was, which appeared in (1943), 21 Can. Bar. Rev. 503 at pp. 504-5:

There 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, e.g., the most trivial assault, if it should, through some unforeseen weakness in the deceased, cause death, will 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 act of the accused in R. v. Larkin fell within the class of intentional crimes because he was engaged in committing an assault upon Nielsen, and the fact that he caused a different type of harm to that which he intended did not free him from criminal responsibility.

The Crown was under no burden of proving intention to cause death or injury. The only intention necessary was that of delivering the kick to Cobby. Nor was foreseeability in issue. It is no defence to

[Page 520]

a manslaughter charge that the fatality was not anticipated or that death ordinarily would not result from the unlawful act.

In R. v. Cato[6] the act supporting the manslaughter conviction was the injection by the accused into another person of morphine which the accused had unlawfully taken into his possession. Attention was directed to causation, and the link alleged to exist between the injection of morphine and the death. The appellant’s argument based on the medical evidence of causation and the rejection of that argument by the Court of Appeal are to be found in the following passage, at p. 44:

First of all, he invited us to look at the evidence of causation, and he pointed out that the medical evidence did not at any point say ‘This morphine killed Farmer’; the actual link of that kind was not present. The witnesses were hesitant to express such a view and often recoiled from it, saying it was not for them to state the cause of death. It is perfectly true, as Mr. Blom-Cooper says, that the expert evidence did not in positive terms provide a link, but it was never intended to do so. The expert witnesses here spoke to factual situations, and the conclusions and deductions therefrom were for the jury. The first question was: was there sufficient evidence upon which the jury could conclude, as they must have concluded, that adequate causation was present?

The third sub-question is whether there was evidence from which the jury was entitled to find that it had been established beyond a reasonable doubt that the kick caused the aspiration. It is contended that the burden on the Crown was to prove beyond a reasonable doubt that the kick caused both the vomiting and the aggravated condition of aspiration. I do not agree. A person commits homicide, according to s. 205(1) of the Code, when directly or indirectly, by any means, he causes the death of a human being. Once evidence had been led concerning the relationship between the kick and the vomiting, leading to aspiration of stomach contents and asphyxia, the contributing condition of a malfunctioning epiglottis would not prevent conviction for manslaughter.

[Page 521]

Death may have been unexpected, and the physical reactions of the victim unforeseen, but that does not relieve the appellant.

In R. v. Garforth[7], a decision of the Court of Criminal Appeal of England, the accused, aged 16, and another young man, S., quarrelled with the deceased, aged 18, outside a dance-hall. S. kicked the deceased and when he doubled up stabbed him in the neck and heart, then the accused kicked him on the body and legs and S. kicked him on the head. S. was found guilty of murder and the accused was found guilty of manslaughter. The accused appealed against his conviction on the ground there was no evidence that what he did was a cause of death. It was held, dismissing the appeal, that there was clear evidence that the accused unlawfully assaulted the deceased and inflicted minor injuries which contributed to the death. Had the jury found that the accused intended to do grievous bodily harm, he would have been guilty of murder.

It is a well-recognized principle that one who assaults another must take his victim as he finds him. An extreme example of the application of the principle will be found in the English case of R. v. Blaue[8] in which the Court upheld a conviction for manslaughter where the victim’s wounds were only fatal because of her refusal, on religious grounds, to accept a blood transfusion. The Court rejected the argument that the victim’s refusal had broken the chain of causation between the stabbing and the death.

Although causation in civil cases differs from that in a criminal case, the “thin skulled man” may appear in the criminal law as in the civil law. The case of R. v. Nicholson[9] will serve as an illustration. In that case, the accused dealt the

[Page 522]

deceased man two heavy blows. The man who was struck was in poor physical condition. His heart was abnormally small and he was suffering from Bright’s disease. An eminent medical specialist was asked if the blow or blows could cause death, given the condition of the body which was described, and he said it was possible. The blow might be one of the causes. Over-indulgence in alcohol, bad health, and the blow and tussle combined, in his opinion, to account for the result. The appeal from conviction was dismissed. Even if the unlawful act, alone, would not have caused the death, it was still a legal cause so long as it contributed in some way to the death. I myself presided at a jury trial in which the accused, one Alan Canada, following an argument, struck his brother lightly on the head with a piece of firewood as a result of which the brother died some time later without regaining consciousness. The medical evidence showed that the bony structure of his skull was unusually thin and fragile. The accused, on the advice of counsel, pleaded guilty to a charge of manslaughter and I have never considered that he was wrong in doing so.

I would conclude this point by saying that although Dr. Hillsdon Smith thought that once vomiting had been induced, aspiration in these circumstances was no more than an accident, both Dr. Brunsdon and Dr. Butt acknowledged that the kick may have contributed to the epiglottal malfunction.

That brings me to the third and final ground of appeal, namely, whether the trial judge’s charge to the jury on the issue of self-defence amounted to misdirection. Although undoubtedly much upset by the actions and language of Cobby during the first ten minutes of play, thereafter the appellant alone was the aggressor. He relentlessly pursued Cobby some forty-five minutes later for the purpose of carrying out his threats to “get” Cobby. Despite the frail factual underpinning for such a defence, the trial judge charged fully on self-

[Page 523]

defence and in a manner which, in my opinion, was not open to criticism.

I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Blaney, Pasternak, Smela, Eagleson & Watson, Toronto, and Mackay, Kirvan & Guy, Kitchener.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.