[1] The respondents, Claude Robinson and Les Productions Nilem Inc., are asking this Court to order the applicants to provide security in the amount of $3,250,000 for the amounts they would have to pay should their appeals to this Court be unsuccessful. According to the respondents, this motion is made under s. 60(1)(b) of the Supreme Court Act, R.S.C. 1985, c. S‑26, and Rule 47 of the Rules of the Supreme Court of Canada, SOR/2002‑156. The motion was filed at the very end of the leave to appeal process, after the Court had given notice that it was about to rule on the parties’ applications for leave to appeal.

[5] In the instant case, the conditions for the requested stays were laid down in Fournier J.A.’s decision. That judgment will continue to apply for the duration of the appeals for which leave is being granted in judgments rendered this same day by this Court and filed together with our decision on the respondents’ motion. This motion by the respondents, whose application for leave to appeal is also being granted, amounts for all intents and purposes to an attempt to review the judgment of Fournier J.A.

[6] It should be added that it would be difficult to reconcile security such as this with the requirements underlying proper access to the Supreme Court. Section 40 of the Supreme Court Act provides that an application for leave to appeal is to be decided on the basis of the importance of the case. Moreover, the procedure for granting leave to appeal is in itself a sufficient deterrent against frivolous or dilatory appeals.

[7] For these reasons, the respondents’ motion is dismissed without costs.

Cinar Corp. v. Robinson, 2012 SCC 25

The Court held that the trial judge failed to correctly consider principles of sentencing, especially moral culpability. The Court develops a framework for determining moral cuplpability in cases of harm by a care giver, starting at para 35. Factors to consider include:

• Nature of the harm to the child. Was it bodily harm? Is the child likely to recover? Was the child’s life endangered?
• Was the harm likely or foreseeable? Was the consequence intended?
• Consideration of the factors in s. 718.2(a)(ii.1) and (iii) of the Criminal Code
• Aggravating factors such as use of a weapon, third party involvement, multiple offences?

R. v. Nickel, 2012 ABCA 158

Criminal law — Offences — Manslaughter — Causation — Accused punching victim in head during barroom altercation rendering him unconscious — Third party intervening and punching victim in head — Victim dying from injuries — When does an intervening act by another person sever causal connection between accused’s act and victim’s death, thereby absolving accused of legal responsibility? — Whether it was open to trial judge to find that accused’s assaults remained a significant contributing cause of death despite intervening act.

Late at night, in a busy bar, the accused brothers T and M repeatedly punched the victim in the face and head. T eventually struck a blow that rendered the victim unconscious. Arriving on the scene within seconds, a bar bouncer then struck the victim in the head. The medical evidence was inconclusive about which blows caused death. As a result, the trial judge acquitted the accused brothers and the bouncer. The Court of Appeal was unanimous that the accused’s assaults were factually a contributing cause of death — “but for” their actions, the victim would not have died. Furthermore, the majority of the Court of Appeal concluded that the risk of harm caused by the intervening actor could have been reasonably foreseeable to the accused. The dissenting judge did not agree that the accused could have reasonably foreseen the conduct of the intervening actor, and also concluded that the intentional act of a third party (bouncer) acting independently severed legal causation. The appeal was allowed, the acquittals were set aside and a new trial was ordered.

Courts have used a number of analytical approaches to determine when an intervening act absolves the accused of legal responsibility for manslaughter. For example, both the “reasonable foreseeability” and the “intentional, independent act” approach may be useful in assessing legal causation depending on the specific factual matrix. These approaches grapple with the issue of the moral connection between the accused’s acts and the death; they acknowledge that an intervening act that is reasonably foreseeable to the accused may well not break the chain of causation, and that an independent and intentional act by a third party may in some cases make it unfair to hold the accused responsible. These approaches may be useful tools depending upon the factual context. However, the analysis must focus on first principles and recognize that these tools are analytical aids and do not alter the standard of legal causation or substitute new tests. Even in cases where it is alleged that an intervening act has interrupted the chain of legal causation, the causation test remains whether the dangerous and unlawful acts of the accused are a significant contributing cause of the victim’s death.

The reasonable foreseeability approach questions whether it is fair to attribute the resulting death to the initial actor and posits that an accused who undertakes a dangerous act, and in so doing contributes to a death, should bear the risk that other foreseeable acts may intervene and contribute to that death. The time to assess reasonable foreseeability is at the time of the initial unlawful act, rather than at the time of the intervening act as it is too restrictive to require that the precise details of the event be objectively foreseeable. It is the general nature of the intervening acts and the accompanying risk of harm that needs to be reasonably foreseeable. The intervening acts and the ensuing non‑trivial harm must be reasonably foreseeable in the sense that the acts and the harm that actually transpired flowed reasonably from the conduct of the accused. If so, then the accused’s actions may remain a significant contributing cause of death.

Whether an intervening act is independent is sometimes framed as a question of whether the intervening act is a response to the acts of the accused. In other words, did the act of the accused merely set the scene, allowing other circumstances to (coincidentally) intervene, or did the act of the accused trigger or provoke the action of the intervening party? If the intervening act is a direct response or is directly linked to the accused’s actions, and does not by its nature overwhelm the original actions, then the accused cannot be said to be morally innocent of the death.

In this case, it was open to the trial judge to conclude that it was reasonably foreseeable that the fight would escalate and other patrons would join or seek to end the fight or that the bouncers would use force to seek to gain control of the situation. Further, it was open to the trial judge to find that the bouncer’s act was closely connected in time, place, circumstance, nature and effect with the accused’s acts and the effects of the accused’s actions were still subsisting and not spent at the time the bouncer acted. Therefore, based upon the trial judge’s findings of fact, it was open to him to conclude that the general nature of the intervening act and the accompanying risk of harm were reasonably foreseeable; and that the act was in direct response to the accused’s unlawful actions. The judge could have concluded that the bouncer’s assault did not necessarily constitute an intervening act that severed the link between the accused’s conduct and the victim’s death, such that it would absolve them of moral and legal responsibility. The trial judge could have found that the accused’s actions remained a significant contributing cause of the death.

Held: The appeal should be dismissed.

Matthew Leslie Maybin et al. v. Her Majesty the Queen, 2012 SCC 24

Constitutional law — Division of powers — Labour relations — Company normally and habitually providing crane and heavy equipment rental services and, to lesser extent, stevedoring services — Whether stevedoring activities form part of federal jurisdiction over shipping — Whether stevedoring activities form integral part of federally regulated undertaking — Whether company’s employees governed by federal or provincial occupational health and safety legislation — Constitution Act, 1867, ss. 91(10), 92(10), and 92(13).

Held: The appeal should be dismissed.

T is a heavy equipment rental company that rents out cranes and heavy equipment. It also engages in intra‑provincial road transportation and maintenance and repair of equipment. In 2005‑2006, some of its cranes were used for stevedoring. This activity represented 14 percent of its overall revenue and 20 percent of the salaries paid to employees. T’s stevedoring services were not performed by a discrete unit of employees; the employees were fully integrated into T’s workforce and worked interchangeably across the different sectors of the organization. At the relevant time, all of T’s activities took place within the province of Quebec.

In 2006, and based on the Stevedores Reference, [1955] S.C.R 529, T’s parent company sought a declaration from Quebec’s Commission de la santé et de la sécurité du travail (“CSST”) that T’s activities fell under federal jurisdiction and that it was not, as a result, subject to provincial occupational health and safety legislation. T argued that its stevedoring activities are part of the federal government’s jurisdiction over shipping, with the result that its employees should be federally regulated. The CSST concluded that T’s activities came under provincial jurisdiction. This conclusion was upheld by the Commission des lésions professionnelles but was overturned by the Superior Court. The Court of Appeal allowed the appeal and agreed that provincial regulation applied, based primarily on the findings that stevedoring represented only a minor part of T’s overall operations, that it did not have a special stevedoring division, and that T had not adduced evidence of the nature of its contractual or organizational relationships with the federal shipping companies it serviced.

Tessier Ltée v. Quebec (Commission de la santé et de la sécurité du travail), 2012 SCC 23

Sections 135 & 136 are within Section 3, Post-Sentencing, of the Act and amend the International Transfer of Offenders Act. 

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