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Despite the absence of details about the charges against the Barrhead duo that is supposed to have assisted mass murderer James Roszko in the hours before he killed four RCMP officers near Mayerthorpe, one can nonetheless spy a major headache for whatever lucky Crown prosecutor is handed the file. Parliament in its infinite wisdom has amended the Criminal Code to make a murder automatically first-degree when the victim or victims are police officers. What it may not have paused to consider is that this would make it harder to convict people who assist in the killing of police officers.

The Criminal Code's language concerning murder specifies that one must "cause the death [of a human being]" in order to be convicted of the offence itself without physically killing someone. The general standard for causation is most clearly outlined in a case that all first-year law students get to eyeball: Smithers v. the Queen. Smithers was a hockey player who kicked a guy in the stomach during a postgame fight, causing him to die of asphyxiation when he aspirated vomit through what may have been a defective epiglottis. The 1977 court ruled that "There was substantial evidence before the jury indicating that the kick was at least a contributing cause of death, outside the de minimis range, and that was all that the Crown was required to establish." Those ten words in boldface have become the core of the Smithers standard and the key guidance for judges instructing juries on causally ambivalent murder charges.

But the Court has since found that because of the "increased penalty and stigma" of a first-degree murder charge, the Crown must meet a markedly higher standard in order to convict—the so-called Harbottle test. The latest jurisprudence (Nette) has arguably reduced the Smithers-Harbottle gap slightly by giving trial judges freedom to restate the fusty Latin of Smithers in their own words, but it also reiterates that the gap still exists and should be respected. Here are some quotes from Justice Cory's majority decision in Harbottle, which was handed down at a time when the murder of a police officer was covered by s.214 of the Criminal Code [emphasis mine throughout]:

The test of causation for s. 214(5) must be a strict one, given the consequences of conviction for first degree murder and given the wording of the section. An accused may only be convicted under the subsection if the Crown establishes that he or she has committed an act or series of acts which are of such a nature that they must be regarded as a substantial and integral cause of the death.

Causation occurs when an act or a series of acts (in exceptional cases an omission or series of omissions) consciously performed by the accused is or are so connected with the event that it or they must be regarded as having a sufficiently substantial causal effect which subsisted up to the happening of the event, without being spent or without being in the eyes of the law sufficiently interrupted by some other act or event. The accused must play a very active role—usually a physical role—in the killing. Under s. 214(5), the actions of the accused must form an essential, substantial and integral part of the killing of the victim. Obviously, this requirement is much higher than that necessary for manslaughter.

Physically causing the death of the victim will in most cases be required to convict under s. 214(5). However, while the intervening act of another will often mean that the accused is no longer the substantial cause of the death under s. 214(5), there will be instances where an accused could well be the substantial cause of the death without physically causing it.

Justice Cory gave posterity a couple of examples of cases in which an accused could "substantially" commit murder without physically killing a human being.

...if one accused with intent to kill locked the victim in a cupboard while the other set fire to that cupboard, then the accused who confined the victim might be found to have caused the death of the victim pursuant to the provisions of s. 214(5). Similarly an accused who fought off rescuers in order to allow his accomplice to complete the strangulation of the victim might also be found to have been a substantial cause of the death.

To convict the boys from Barrhead of first-degree murder—and remember, second-degree murder is not an option—the Crown will have to show that their participation in the murders was intimate enough to be analogous to these examples. Either that, or it will have to somehow get the Smithers standard used at trial, which would seem to fly directly in the face of a stack of Supreme Court precedent. (Plus, it would obviously still have to meet the Smithers standard itself.) This may actually be possible if some appellate judges are caught napping; all the existing SCC Harbottle cases I can find deal with situations where the accused was a participant in some other "crime of domination" like a kidnapping, and none are connected to the special police-are-worth-more clause in the current Code. Nonetheless, the logic of Harbottle is that an accused facing a first-degree conviction for whatever reason is entitled to the stricter standard as a matter of right.

An additional legal point to remember is that under post-Charter law any murder conviction positively requires evidence of "subjective foreknowledge" that one's actions are likely to cause death; it is no longer enough to show that the accused ought to have known it, even in a trial under Code s. 229(c), where the phrase "or ought to know" has been specifically annulled by the SCC. A few murder convictions have been wiped out when judges carelessly read s. 229(c) to the jury without editing out the offending phrase. If the RCMP really has accumulated convincing evidence that Messrs. Cheeseman and Hennessey definitely knew that Roszko was out to kill, and played "an essential, substantial and integral part" in the killing by the Harbottle standard, then it is to be commended for what must be some remarkably subtle police work.

[Disclaimer: I am not a lawyer. These interpretations are the work of an amateur. Informed comment and contradiction are welcome, nay, strongly desired.]