Causation, Thin Skulls and Equality

Canadian Journal of Law and Jurisprudence

Volumn 11, Issue 1, 1998, Pages 115-141

  Klimchuk, Dennis ^a  

^a NONE

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EID: 85007518362     PISSN: 08418209     EISSN: 20564260     Source Type: Journal    
DOI: 10.1017/S0841820900001715     Document Type: Review

References (25)

1. The choice of the masculine here is deliberate: in this and all the other cases I will consider, the accused was a man. As with Blaue, in many of the cases I will consider, the victim was a woman. I chose the masculine to refer to the wrongdoer and the feminine the victim to reflect this pattern.
2. Supra note 1 at 450
3. H.L.A. Hart & Tony Honore, Causation in the Law, 2d ed. (Oxford: Clarendon Press, 1985) at 361.
4. Eric Colvin, Principles of Criminal Law, 2d ed. (Toronto: Thompson, 1991) at 78-90
5. Glanville Williams, Textbook of Criminal Law (London: Stevens and Sons, 1983) at 378-401. I will stick with "proximate cause."
6. Wex S. Malone, "Ruminations on Cause-In-Fact" (1956) 9 Stanford L.R. 60.
7. Richard W. Wright, "Causation in Tort Law" (1985) 73
8. California L.R. 1735, and Richard Wright, "Causation, Responsibility, Risk, Probability, Naked Statistics, and Proof: Pruning the Bramble Bush by Clarifying the Concepts" (1988) 73 Iowa L.R. 1001.
9. See Jill Presser, "All for a Good Cause: The Need for Overhaul of the Smithers Test of Causation" (1994) 28 C.R. (4th) 178.
10. The old case to which Stephenson L.J. refers here is R. v. Beech (1912), 7 Crim.App.R. 197.
11. Law Reform Commission of Canada, Report 31: Recodifying Criminal Law (Ottawa: Law Reform Commission of Canada, 1987) at 27.
12. On this issue see Allan Manson, "Rethinking Causation: The Implications of Harbottle" (1993) 24 C.R. (4th) 153 , 158-9. Some have thought this test to be over-inclusive.
13. Writing for the Alberta Court of Appeal, McClung J.A. characterized the de minimis test as a one of "sweeping accountability," inconsistent with "principles of fundamental justice," in the language of s. 7 of the Canadian Charter of Rights and Freedoms. R. v. F.(D.L) (1989), 73 C.R. (3d) 391 (Alta C.A.
14. McClung J.A. Section 7 of the Charter provides that "[ejveryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
15. Don Stuart, Canadian Criminal Law, 3d ed. (Toronto: Thompson Publishing, 1995) at 132-33.
16. John Rawls, Political Liberalism (New York: Columbia University Press, 1993), 48.
17. Arthur Ripstein, "Self-defence and Equal Protection" (1996) 57 U. Pitt. L.R. 685 at 689.
18. Rawls' distinction in the context of tort law, see Gregory Keating, "Reasonableness and Rationality in Negligence Theory" (1996) 48 Stanford L.R. 311.
19. Lange v. Hoyt, 114 Conn. 590, 159 A. 575 (1932).
20. Donald Galloway, "Causation in Criminal Law: Interventions, Thin Skulls and Lost Chances" (1989) 14 Queen's L.J. 71-78.
21. see Arthur Ripstein, Equality, Responsibility and the Law (Cambridge: Cambridge University Press, forthcoming), 5.
22. See Dube v. Lobar, [1986] 1 S.C.R. 649 (S.C.C.).
23. This is true even on the most strict deterrence theory. To say that we punish murder more severely than petty theft because we are more concerned to deter the former than the latter is to pass judgment on their relative severity.
24. The point here is not tied to thin skull beliefs. One may substitute for Blaue, a case where some physical condition caused the defendant to die of internal bleeding despite receiving treatment which would have saved an average person.
25. So Kant argues with respect to the duty of truth-telling in his notorious "On the Supposed Right to Lie from Benevolent Motives" in Joram Graf Haber, ed., Absolutism and its Consequentialist Critics (Lanham, MD: Rowman and Littlefield, 1994), 15-19.