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| Nik Khakhar |
Assume person A hosts a party that person B attends. Person B gets inebriated and calls a ride share service to head back home at the end of the night. A few days later, person B tests positive for COVID-19. Person B lives with person C, who is immunocompromised and gets rushed to the ICU upon contracting COVID from person B. Unfortunately, person C does not survive. Person A is then charged with unlawful act manslaughter, with the unlawful act involving hosting the party contrary to the Public Health Order.
There are a few factors in this scenario which could sever the chain of causation from person A to person C. It is unknown as to whether person B contracted COVID from the party, or from the ride on the way home. It is also unclear as to whether person C contracted COVID from person B, or someone else. However, these factors are essential to consider, in order to determine whether person A is truly responsible for person C’s death. Although fairly simple, this scenario illustrates the need to determine whether intervening acts negate legal causation between the hosting of a party and the subsequent death.
The Supreme Court of Canada in R v. Maybin 2012 SCC 24 offered two approaches to determine the extent to which intervening acts affect legal causation. On the one hand, legal causation can be established if the Crown can prove that the intervening acts were reasonably foreseeable (Maybin at para 5). Here, the question is whether it is fair to attribute the resulting death to the initial actor. For example, in the Australian case R v. Hallett, [1969] SASR 141, the accused left their victim unconscious on a beach after a fight, and the victim was subsequently swept away in a high tide (Maybin at para 31). The Supreme Court of South Australia held that a natural event may break the chain of causation if it is extraordinary — such as a tidal wave or tsunami — but not if it is an ordinary, foreseeable factor, such as natural tidal changes (Maybin at para. 31).
Similarly, foreseeability plays a critical role in determining whether a party host can be liable for manslaughter. For example, although person C’s immunocompromised condition was not a result of person A’s party, evidence of societal awareness of COVID-19 risks could be used to prove that person A should have reasonably foreseen the risks of transmission towards vulnerable individuals, even if the transmission is not immediate.
The court in Maybin also considered evaluating causation on the basis of whether the intervening act was a direct response to the accused’s own unlawful act, or was independent enough to sever the link between the unlawful act and subsequent death (Maybin at para. 5). Central to this determination is whether the acts of the accused just set the scene or triggered the intervening act.
Here too, there are difficulties in proving causation. Was person B’s decision to use a ride share a response to person A’s party? Or was it an entirely independent factor? Indeed, ride sharing in a common way of getting home from a house party, particularly if an individual is not in a condition to drive. However, what if person B never intended to use a ride share service, but was offered a free ride from a friend heading home the same way? Would this qualify as a sufficiently independent act, thereby severing the impacts of person A’s party?
It is the complexities that stand in the way to determining causation which are the greatest cause for suspicion against this shift in criminal law within the context of the COVID-19 pandemic. These complexities raise important conversations on the limits and opportunities to prove causation in such cases. Does the utility of contact-tracing technologies extend beyond public health objectives, towards the realms of evidence law and criminal procedure when attempting to prove the link between a COVID-19 party and a resulting death? If contact tracing is not mandatory, can reliance on such evidence prejudice some at the expense of others?
Finally, with how little we have scratched the surface in understanding COVID-19, can such determinations of causality ever be proven beyond a reasonable doubt? The legal community sincerely awaits these answers.
This is the second of a two-part series. Read the first article: The hangover: Charging party hosts with COVID-19 manslaughter, part one.
Nik Khakhar is a a graduate alumnus of the Centre for Criminology and Sociolegal Studies at the University of Toronto and will be entering his second year of law school at the University of Toronto. Over the last year, he has developed a research interest in the ways that evidence law and constitutional considerations have adapted to the COVID-19 pandemic.
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