[63] Counsel for the appellants start this submission with two uncontroversial principles. The actus reus and mens rea for murder must coexist, and the conduct of the accused must be shown to have caused the victim's death. Counsel extrapolate from these principles two further propositions:
· the prosecution must fix the point in time when an accused formed the requisite mens rea; and
· the prosecution can only prove causation in this case if it proves that, at the point in time when the accused formed the mens rea, the victim would have survived had he received appropriate medical care. If the victim would have died in any event, the conduct of the accused after the accused had formed the mens rea cannot be said to have caused the victim's death.
[64] Counsel submit that the trial judge failed to address and apply the two propositions set out above. Neither proposition finds any support in the case law or any justification in the principles governing criminal liability. The first proposition is answered by the decision of the Supreme Court of Canada in R. v. Cooper, [1993] 1 S.C.R. 146 at p. 161. Cory J., for the majority, said:
In order to obtain a conviction under s. 212(a)(ii) [now s. 229(a)(ii)] the Crown must prove that the accused caused and intended to cause bodily harm that he knew was likely to cause the death of the victim. If death results from a series of wrongful acts that are part of a single transaction then it must be established that the requisite intent coincided at some point with the wrongful acts. [Emphasis added.]
[65] It was the Crown's theory that Jeffrey's death was the product of a prolonged course of conduct involving Jeffrey's starvation, abuse and neglect. This course of conduct was properly viewed as a single transaction. It was not incumbent on the Crown to point to the moment in time when it dawned on the appellants that their conduct would probably result in Jeffrey's death. It was sufficient if the Crown proved that at some point in time during that course of conduct, each accused knew that Jeffrey's death was the probable consequence of the harm their abuse and neglect had caused and continued to cause to Jeffrey.
[66] The trial judge correctly stated the applicable legal principles (paras. 70-78). Like him, we see the principles as equally applicable whether the transaction consists of acts, culpable omissions, or a combination of the two. The trial judge applied those principles to his findings of fact (paras. 436-448). He was not required to search out the precise moment during the course of conduct at which each appellant formed the requisite mens rea.
[67] The second proposition advanced by the appellants misunderstands causation in the law of homicide. Causation does not ask whether the victim would have died in any event. Everyone will die. Causation asks whether the conduct of the accused was a significant factor contributing to the victim's death at the time and for the reason the victim in fact died. If an accused's conduct shortens a victim's life by a minute, the accused has caused the victim's death for the purposes of the law of homicide. The medical evidence established beyond peradventure that the appellants' neglect and mistreatment of Jeffrey was a factual cause of his death.
[68] Applying the law of causation to the facts as he found them, the trial judge held that the appellants, through their continued abuse and neglect of Jeffrey and their failure to obtain medical assistance, had caused him to die when he did and for the reason he did. Given the appellants' uncontested legal duty to provide Jeffrey with the necessaries of life, the trial judge's finding established that the accused, through their course of conduct, had caused Jeffrey's death by an unlawful act and thereby committed a culpable homicide. On the authority of Cooper, the question then became whether the appellants had the mens rea for murder at some point during that course of conduct. The trial judge was satisfied they did. We see no error.
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