Establishing causation of an injury can be a difficult task. The courts traditionally apply what has come to be known as the “but for” test: causation is established if the injury would not have occurred but for the event in question. The problem can be especially difficult in cases of psychiatric injury, in sorting out the specific cause of emotional damage. The Court of Appeal for Ontario was faced with such circumstances in the recent decision of Frazer v. Haukioja, 2010 ONCA 249. Mr. Frazer attended at the emergency room following a motorcycle accident complaining of pain in his right and left ankles. He was examined by Dr. Haukioja, who diagnosed a left ankle fracture. He advised Mr. Frazer that the right ankle was fine and the pain was part of the healing process. When later x-rays disclosed that Mr. Frazer had suffered a talus fracture of the right ankle, Dr. Haukioja failed to advise Mr. Frazer of the results. When Mr. Frazer discovered this at an appointment with another physician, he began suffering serious psychiatric problems as a result of his belief that he had been mistreated and lied to by Dr. Haukioja. The resulting trial resulted in a substantial judgment for damages. The issue before the Court of Appeal was whether Mr. Frazer had properly satisfied the test for causation.

“As the trial judge perceived it, the evidence of Dr. Sadavoy is vital in determining whether the ‘but for’ test has been met. Dr. Sadavoy listed three causative factors behind Mr. Frazer’s psychiatric injury:

• The difference between the true severity of the talus fracture and what was conveyed by Dr. Haukioja;
• Mr. Frazer’s belief that he was “medically mistreated” and “deliberately harmed”; and
• Mr. Frazer’s belief that he contributed to his own disability by walking on the ankle.

The first cause identified by Dr. Sadavoy is the difference between the true severity of the talus fracture and Dr. Haukioja’s representations. Dr. Haukioja failed to communicate with Mr. Frazer at all between December 6, 2001 and January 10, 2002, leaving Mr. Frazer with the understanding that there was no right-ankle fracture. On January 10, 2002, Dr. Haukioja communicated in an inadequate fashion, leaving Mr. Frazer with the understanding that the fracture was tiny, barely visible and minor. It was not until January 23, 2002 that another doctor advised Mr. Frazer of the true nature of his injury.

The evidence clearly demonstrates that but for the non-disclosure, Grant Frazer would have known the true severity of his injury and this first factor would never have come into existence.

The second cause named by Dr. Sadavoy is Mr. Frazer’s belief that he was medically mistreated and deliberately harmed. Dr. Haukioja argues that there is a legal distinction between the non-disclosure and Mr. Frazer’s interpretation of the non-disclosure. Moreover, as the trial judge found there was no evidence to support a finding that Dr. Haukioja deliberately exposed Mr. Frazer to harm, it was not open to the trial judge to find factual causation. I do not agree with this submission. Despite the trial judge’s finding that Dr. Haukioja did not act deliberately, it is sufficient that Mr. Frazer would not have formed the belief that Dr. Haukioja was deliberately causing him harm if the non-disclosure had never happened. This is all that the “but for” test requires.

The third cause identified by Dr. Sadavoy is Mr. Frazer’s belief that he contributed to his own disability by walking on the ankle. Mr. Frazer would not have experienced extra pain from weight-bearing, and thus formed the belief that he had exacerbated his injury, if Dr. Haukioja had disclosed the existence of the fracture on December 6, 2001. This is sufficient to meet the “but for” test.

The trial judge’s acceptance of Dr. Sadavoy’s evidence necessarily means that factual causation is made out on the “but for” test. The real issue in this case is whether legal causation has also been established. As I will explain, I hold that it has…

In the present case, the trial judge found at para. 227 of his reasons that, ‘[t]he psychiatric evidence establishes that the illness that Dr. Haukioja’s conduct brought about in Grant was foreseeable even if the extent of his disability was not.’ I read this as the trial judge’s following the test in Mustapha and finding that it was reasonably foreseeable that Dr. Haukioja’s conduct would cause a mental injury in a person of reasonable fortitude, even if the precise nature and extent of Mr. Frazer’s condition were not reasonably foreseeable. Thus, although the trial judge distinguished Mustapha on its facts, he actually applied the test established in that case, and did so correctly.

Justice David Brown of the Ontario Superior Court of Justice is a careful and thoughtful jurist. Since his appointment as Administrative Judge in charge of the Toronto Estates List, he has been confronted with a number of contentious and difficult cases in this highly charged area of civil litigation. With this background, a postscript Justice Brown added to his decision in Salter v. Salter, 2009 CanLII 28403 on the subject of costs in estate litigation matters is especially noteworthy:

“From a year of acting as administrative judge for the Toronto Region Estates list I have concluded that the message and implications of the McDougald Estate case are not yet fully appreciated. A view persists that estate litigation stands separate and apart from the general civil litigation regime. It does not: estates litigation is a sub-set of civil litigation. Consequently, the general costs rules for civil litigation apply equally to estates litigation – the loser pays, subject to a court’s consideration of all relevant factors under Rule 57, and subject to the limited exceptions described in McDougald Estate. Parties cannot treat the assets of an estate as a kind of ATM bank machine from which withdrawals automatically flow to fund their litigation. The ‘loser pays’ principle brings needed discipline to civil litigation by requiring parties to assess their personal exposure to costs before launching down the road of a lawsuit or a motion. There is no reason why such discipline should be absent from estate litigation. Quite the contrary. Given the charged emotional dynamics of most pieces of estate litigation, an even greater need exists to impose the discipline of the general costs principle of ‘loser pays’ in order to inject some modicum of reasonableness into decisions about whether to litigate estate-related disputes.”

In cases involving personal injuries in Ontario, defendants are given a virtually automatic right to have the plaintiff examined by a health practitioner. Section 105(2) of the Courts of Justice Act provides that “Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.”

The rationale for the rule is that by commencing an action for damages, a claimant puts their health condition in issue and it would be unfair not to permit a defendant to challenge this with evidence from a physician of their choosing. The question has arisen whether plaintiffs should be permitted to tape the examination. It is not uncommon for the parties to have differing memories as to what was said or done during the examination, and there is concern amongst many plaintiff’s counsel about the independence of physicians who earn much of their livelihood from the conduct of defence medical examinations.

The Courts have generally taken a conservative approach to permitting defence medial examinations to be video or audiotaped, requiring a showing of bias on the part of the doctor involved before allowing a plaintiff to do so. In the decision of Adams v. Cook, 2010 ONCA 293, a five judge panel of the Ontario Court of Appeal was asked to revisit the issue. In a 3-2 decision, the Court declined to permit the routine taping of defence medical examinations, holding that there are important issues requiring study by the Civil Rules Committee and the input of interested medical and legal organizations before such a step could be considered. The majority acknowledged that there was a basis for a change in practice:

“I recognize that this court constituted as a panel of five judges is in a position to broaden the application of Bellamy and, in effect, make the recording of defence medicals a more or less routine practice. No doubt a case can be made for doing so. Arguably, the litigation landscape has changed in the 18 years since Bellamy was decided. Legitimate concerns have been expressed by the Honourable Coulter Osborne and others in respect of the role of experts in the civil litigation process. The findings and recommendations of my colleague, Justice Goudge in his report, Inquiry into Pediatric Forensic Pathology in Ontario: Report (Toronto: Ontario Ministry of the Attorney General, 2008) suggest similar concerns arise in criminal cases. Some contend that the routine recording of defence medicals and the transparency it produces would improve the discovery process. Given the electronic world in which we now live, it is perhaps at least questionable whether the presence of a small recording device is likely to have any adverse affect on a medical specialist’s examination.”

The reasons of the dissenting judges well explained the basis for permitting the routine taping of defence medical examinations unless doing so would interfere with the proper conduct of the examination:

“The Chief Justice constituted this five-judge panel specifically so that it could reconsider the principles in Bellamy. In light of the developments since Bellamy was decided 18 years ago, that reconsideration should take place.

As I have said, it appears that the majority in Bellamy concluded that a case-specific reason or bias on the part of the proposed examiner is required. In my view, any requirement for a case-specific bias on the part of a defence examiner is overly-restrictive for three reasons.

First, it is unreasonable to expect that an individual plaintiff or a plaintiff’s lawyer could amass the data necessary to support such an allegation. Such an undertaking would be inordinately difficult, expensive and time-consuming.

Second, in Bellamy at p. 593, Brooke J.A. quoted the Divisional Court’s statement that a defence orientation “is immaterial short of misconduct that should be subject to a report to the College of Physicians and Surgeons”. If it is necessary to prove a defence orientation to the level of professional misconduct, rarely would a court impose a recording condition when ordering a defence medical.

Finally, the inevitably personal nature of an attack alleging actual bias, if unsuccessful, could put the plaintiff at risk of alienating the examiner who will pronounce on his or her medical condition. The plaintiff may unnecessarily be left with an increased concern about the examiner’s ability to report objectively.”

Maintaining the integrity of the litigation process is at the heart of this dispute. As both the majority and dissenting judges acknowledged, further study on this important issue is called for. In the meantime, in my view the dissenting judges got it right.

“Innocent until proven guilty” is a golden thread running through our criminal justice system. The detention of an accused person before trial runs counter to this principle but can be justified for serious offences where the defendant presents a danger to the public or where there is a real risk that the accused may not appear for trial. Section 11(e) of the Charter of Rights and Freedoms recognizes the competing interests. It provides that “Any person charged with an offence has the right not to be denied reasonable bail without just cause.”

In order to give effect to this important constitutional right, it is necessary that bail hearings be heard on the merits in a timely manner. Lack of institutional resources, in the form of insufficient courts or judges, may prevent this from happening. In these circumstances, courts are faced with difficult decisions as to how to remedy the situation. These were the circumstances facing the Court of Appeal for Ontario in the April 19, 2010 decision in R. v. Zarinchang, 2010 ONCA 286.

Mr. Zarinchang had been arrested at the end of March, 2007 and was brought before a Justice of the Peace in the Newmarket Court for a bail hearing a day later. As a result of a combination of too many cases on the court list and insufficient judges to hear the matter, the bail hearing could not proceed on four separate hearing dates on which Mr. Zarinchang, his lawyer and proposed sureties were in attendance and ready to proceed. Close to a month after his arrest, he was ultimately detained, however before the trial judge Mr. Zarinchang brought a motion to stay the proceedings on the basis that his right to a timely bail hearing had been denied. The trial judge granted the stay, saying “When the breach of the applicant’s rights here are considered, it can only be described as serious and flagrant, those responsible have effectively ignored the impending reality and disaster that was afoot. Individuals have been allowed to languish in custody awaiting show cause hearings. The serious nature of this matter could only be remedied by the most significant remedy available, that being a stay of the charges.”

On the resulting appeal by the Crown, the Court of Appeal did not try and sugar coat the breach of constitutional rights. The Court was concerned, however, that the remedy of a stay of proceedings be reserved for those cases where continuing the proceedings would cause sufficient harm to the justice system to warrant refusing to hear the case on the merits. The Court held that the reasons of the trial judge did not disclose that he had engaged in this balancing exercise:

“In this case, it appears that the systemic failure of the bail system in York Region found by the trial judge would likely continue to affect others in the future unless some appropriate action was taken. However, the question that arises is whether continuing the prosecution against the respondent in this circumstance would create prejudice to the system of justice that warrants the use of a stay. In our view, there is an element of uncertainty about the answer to this question. That being the case, the third criterion articulated in the above cases comes into play – a court should then balance the interests served by the granting of a stay against the interest served by a trial on the merits.

Unfortunately, the reasons of the trial judge do not suggest that he undertook the balancing exercise. That failure in our view is critical and leads us to conclude that the stay must be set aside. In fairness to the trial judge, counsel on the application for a stay did not submit that he undertake such an exercise.

While it may be open to this court, in an appropriate case, to undertake the balancing exercise when none has been undertaken in the court below, we would not do so on the record before us. While we have the evidence concerning the systemic failure and the serious consequences it had for persons in custody awaiting bail in York Region, the record is unhelpful in respect of other interests that are relevant to the balancing exercise. Although the transcript of the bail hearing contains some information that would ordinarily be required for the balancing exercise, much of it was challenged by the respondent.

It may be that a stay of the charges against this respondent is an appropriate price for society to pay in order to correct a serious systemic failure in the bail system in York Region. However, it is only after a proper balancing of the appropriate interests is undertaken that a court could come to that conclusion. We observe in passing that the trial judge’s order appears to have caused the authorities in York Region to take some steps to address the problem. Counsel for the Crown in the court below conceded during the costs hearing that since the trial judge had ordered the stay of proceedings ‘we have now been running a second bail court here five days a week, which will obviously have significant benefit to other accused going forward.’”

Liability for criminal conduct requires an intent to cause harm. An important question in criminal law is the degree to which lesser states than actual knowledge can form the basis for a criminal conviction. In the decision of the Supreme Court of Canada in R. v. Briscoe, 2010 SCC 13 released today, the Court makes some important observations about the concept of wilful blindness:

“Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. See Sansregret v. The Queen, [1985] 1 S.C.R. 570, and R. v. Jorgensen, [1995] 4 S.C.R. 55. As Sopinka J. succinctly put it in Jorgensen (at para. 103), “[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?”

Courts and commentators have consistently emphasized that wilful blindness is distinct from recklessness. The emphasis bears repeating. As the Court explained in Sansregret (at p. 584):

. . . while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry. [Emphasis added.]

It is important to keep the concepts of recklessness and wilful blindness separate. Glanville Williams explains the key restriction on the doctrine:

The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law. It is, at the same time, an unstable rule, because judges are apt to forget its very limited scope. A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice. Any wider definition would make the doctrine of wilful blindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge. [Emphasis added.]

(Criminal Law: The General Part (2nd ed. 1961), at p. 159 (cited in Sansregret at p. 586.)

Professor Don Stuart makes the useful observation that the expression “deliberate ignorance” seems more descriptive than “wilful blindness”, as it connotes “an actual process of suppressing a suspicion”. Properly understood in this way, “the concept of wilful blindness is of narrow scope and involves no departure from the subjective focus on the workings of the accused’s mind” (Canadian Criminal Law: A Treatise (5th ed. 2007), at p. 241). While a failure to inquire may be evidence of recklessness or criminal negligence, as for example, where a failure to inquire is a marked departure from the conduct expected of a reasonable person, wilful blindness is not simply a failure to inquire but, to repeat Professor Stuart’s words, ‘deliberate ignorance’.”

On March 26, 2010, the jury in the Jordan Manners murder trial announced that they were unable to reach a verdict, prompting Justice Ian Nordheimer to declare a mistrial. The two accused will now have to be retried. Manners’ shocking murder at his Toronto high school caused great consternation and an official review of high school security procedures. The resulting trial was bound to be a high profile one. What made it especially noteworthy was the recantation by two students who had given statements to the police indicating that they had witnessed the murder. At trial, the two girls recanted their evidence, stating they had merely been repeating “rumours.” The Crown Attorney argued to the jury that the girls had a change of heart out of fear.

From their failure to agree on a verdict, it can be inferred that the jury was troubled by the evidence. So was the judge. At the conclusion of the evidence, while the jury was deliberating, Justice Nordheimer called upon the Attorney General to conduct a “full review” of the matter, presumably with a view to a possible prosecution for perjury. Given that a new trial will have to go forward with the evidence of the two girls, the Attorney General is in a difficult position. He would undoubtedly want to pay careful attention to the recommendation of a respected jurist, but the continued prosecution would not be helped by an outstanding indictment for perjury of important Crown witnesses. We have clearly not heard the last of this matter.