R. v. Nette (D.M.) (2001), 158 B.C.A.C. 98 (SCC);

    258 W.A.C. 98

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Temp. Cite: [2001] B.C.A.C. TBEd. NO.045

Daniel Matthew Nette (appellant) v. Her Majesty The Queen (respondent) and The Attorney General for Ontario (intervenor)

(27669; 2001 SCC 78)

Indexed As: R. v. Nette (D.M.)

Supreme Court of Canada

McLachlin, C.J.C., L’Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.

November 15, 2001.


A 95 year old woman who was “hog-tied” during a robbery subsequently died from what a medical expert described as asphyxi­ation due to upper airway obstruction. The accused was charged with first degree mur­der. The jury found the accused guilty of second degree murder. The trial judge had instructed the jury that the standard of caus­ation for second degree murder was that the accused’s actions must be “more than a trivial cause” of the victim’s death. The accused appealed.

The British Columbia Court of Appeal, in a judgment reported 131 B.C.A.C. 104; 214 W.A.C. 104, dismissed the appeal. The accused appealed. The sole issues on appeal were the standard of causation for second degree murder and how that standard should be explained to the jury.

The Supreme Court of Canada dismissed the appeal, stating that “the trial judge cor­rectly charged the jury on the applicable standard of causation for second degree murder in expressing the standard as one in which the accused must have been more than an insignificant or trivial cause of the vic­tim’s death”.

Criminal Law – Topic 1260.1

Murder – Causation – The Supreme Court of Canada unanimously held that the stan­dard of causation for second degree mur­der remained the standard set out in R. v. Smithers: “a contributing cause that is not trivial or insignificant” – The majority of the court (Arbour, Iacobucci, Major, Bin­nie and LeBel, JJ.) also held that a reformulated version of the standard (i.e., “significant contributing cause”) was ac­ceptable – The minority (McLachlin, C.J.C., L’Heureux-Dubé, Gonthier and Bastarache, JJ.) opined that the “significant contributing cause” standard would consti­tute a substantive change raising the stan­dard and was not acceptable, because it was not merely another way of expressing the Smithers test – See para­graphs 24 to 58, 75 to 88.

Criminal Law – Topic 1268

Murder – Second degree murder – What constitutes – A 95 year old woman was “hog-tied” during a robbery and a ligature was placed around her neck – The woman at one point fell off her bed – The woman died from what a medical expert described as asphyxiation due to upper airway ob­struction – The sole issue on appeal was whether the Smithers standard used by the trial judge (i.e., that accused’s actions were a contributing cause of the woman’s death that was not trivial or insignificant) remained the appropriate standard – The Supreme Court of Canada affirmed the standard used – The court affirmed the verdict of second degree murder – There was no evidence that anything other than the actions of the accused and his accom­plice caused the woman’s death – There was no intervening act – Whether the woman’s age or health problems hastened her death was irrelevant where her death was caused by being left alone hog-tied in her bedroom with a ligature around her neck – See paragraphs 59 to 69.

Cases Noticed:

R. v. Smithers, [1978] 1 S.C.R. 506; 15 N.R. 287, appld. [para. 14].

R. v. Farrant, [1983] 1 S.C.R. 124; 46 N.R. 337; 21 Sask.R. 271, refd to. [para. 14].

R. v. Harbottle (J.), [1993] 3 S.C.R. 306; 157 N.R. 349; 66 O.A.C. 35, refd to. [para. 14].

R. v. Cribben (J.) (1994), 69 O.A.C. 366; 17 O.R.(3d) 548 (C.A.), refd to. [para. 16].

R. v. Meiler (M.) (1999), 120 O.A.C. 227; 136 C.C.C.(3d) 11 (C.A.), refd to. [para. 16].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 30].

R. v. Vaillancourt, [1987] 2 S.C.R. 636; 81 N.R. 115; 10 Q.A.C. 161; 68 Nfld. & P.E.I.R. 281; 209 A.P.R. 281, refd to. [para. 30].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 30].

R. v. Creighton, [1993] 3 S.C.R. 3; 157 N.R. 1; 65 O.A.C. 321, refd to. [para. 30].

R. v. Droste, [1984] 1 S.C.R. 208; 52 N.R. 176, refd to. [para. 35].

R. v. Paré, [1987] 2 S.C.R. 618; 80 N.R. 272; 11 Q.A.C. 1, refd to. [para. 35].

R. v. Arkell, [1990] 2 S.C.R. 695; 112 N.R. 175, refd to. [para. 35].

R. v. Luxton, [1990] 2 S.C.R. 711; 112 N.R. 193; 111 A.R. 161, refd to. [para. 35].

British Columbia Electric Railway Co. v. Loach, [1916] A.C. 719 (P.C.), refd to. [para. 53].

R. v. Pagett (1983), 76 Cr. App. R. 279 (C.A.), refd to. [para. 57].

R. v. Hallett, [1969] S.A.S.R. 141 (S.C. in banco), refd to. [para. 57].

Royall v. R. (1991), 100 A.L.R. 69 (H.C.), refd to. [para. 57].

R. v. Smith (1959), 43 Cr. App. R. 121 (C.M.A.C.), refd to. [para. 57].

R. v. Cheshire, [1991] 3 All E.R. 670 (C.A.), refd to. [para. 57].

R. v. Hennigan, [1971] 3 All E.R. 133 (C.A.), refd to. [para. 57].

Dulieu v. White, [1901] 2 K.B. 669, refd to. [para. 64].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 64].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 222, sect. 229, sect. 231 [para. 9].

Authors and Works Noticed:

Klinck, Dennis R., The Word of the Law (1992), pp. 8 [para. 86]; 15 [para. 87].

Presser, Jill, All For a Good Cause: The Need for Overhaul of the Smithers Test of Causation (1994), 28 C.R.(4th) 178, p. 178 [para. 78].

Semantics and the threshold test for imputable causation (2000), 24 Crim. L.J. 73, pp. 74 to 75 [para. 84].

Stuart, Don, Canadian Criminal Law: A Treatise (3rd Ed. 1995), p. 130 [para. 53].

Tiersma, Peter M., Legal Language (1999), p. 1 [para. 85].

Weissman, Gary A., Legal Esoterica: Re­ality is shaped by the language we use: “Jack and the Beanstalk” as told by a judge, a psychiatrist and an economist, Advocate (Idaho), March 1986, vol. 29, No. 3, p. 22 [para. 86].

Williams, Glanville, Textbook of Criminal Law (2nd Ed. 1983), pp. 381, 382 [para. 30].

Yeo, Stanley, Blamable Causation (2000), 24 Crim. L.J. 144, p. 148 [para. 82].

Yeo, Stanley, Giving Substance to Legal Causation (2000), 29 C.R.(5th) 215, p. 219 [para. 80].


Gil D. McKinnon, Q.C., for the appellant;

Richard C.C. Peck, Q.C., and Nikos Har­ris, for the respondent;

Lucy Cecchetto, for the intervenor, the Attorney General for Ontario.

Solicitors of Record:

Gil D. McKinnon and Keith Hamilton, Vancouver, B.C., for the appellant;

Ministry of the Attorney General, Van­couver, B.C., for the respondent;

Ministry of the Attorney General, Toronto, Ontario, for the intervenor.

This appeal was heard on January 16, 2001, before McLachlin, C.J.C., L’Heureux-Dubé, Gonthier, Iacobucci, Major, Basta­rache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada.

On November 15, 2001, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Arbour, J. (Iacobucci, Major, Binnie and LeBel, JJ., concurring) – see para­graphs 1 to 74;

L’Heureux-Dubé, J. (McLachlin, C.J.C., Gonthier and Bastarache, JJ., concur­ring) – see paragraphs 75 to 89.


R. v. Nette (D.M.)

(2001), 158 B.C.A.C. 98 (SCC)

Supreme Court of Canada
Reading Time:
44 minutes
Arbour, Bastarache, Binnie, Gonthier, Iacobucci, L’Heureux-Dubé, LeBel, Major, McLachlin 

Arbour, J.
: The present appeal raises the issue of causation in second degree murder. It requires a determination of the threshold test of causation that must be met before an accused may be held legally responsible for causing a victim’s death in a charge of second degree murder. We must also ex­amine how the applicable standard of causa­tion should be conveyed to the jury.

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