The “outside de minimis” rule isn’t even an issue here.
The trial judge simply erred in not making the connection between the dangerous driving (a fact he had established) and the bodily harm caused to the pedestrian.
R. v. Harbottle  3 S.C.R. 306
Harbottle and a friend forcibly confined a young woman and Harbottle watched as his friend brutally sexually assaulted her. The two men then discussed ways of killing her. Harbottle held the victim’s legs down as his friend strangled her in order to prevent her from struggling. Harbottle was convicted of first degree murder pursuant to s. 231(5) of the Code.
Was Harbottle’s participation such that he could be found guilty of first degree murder?
Yes. Appeal dismissed.
The actions of the accused formed an essential, substantial and integral part of the killing of the victim.
Is this case really about causation? First degree murder requires a substantial and high degree of blameworthiness.
This is a higher standard than in Smithers where the charge was manslaughter.
This case is really about the degree of participation necessary to bring Harbottle within the scope of liability.
R. v. Cribbin  28 C.R. (4th) 137 (Ont. C.A.)
Cribbin punched and kicked his victim first before his companion attacked the victim more viciously. They abandoned the victim, whose injuries were not life threatening, but he drowned in his own blood. Cribbin was convicted of manslaughter.
Did the Crown have to show that Cribbin substantially contributed to the victim’s death? Are the tests in Smithers unconstitutional?
No. Accused’s appeal dismissed.
Creighton adds the fault element to the de minimis test in unlawful act manslaughter and this removes the risk of punishing the morally innocent. “…if a person commits an unlawful dangerous act, in circumstances where a reasonable person would have foreseen the risk of bodily harm which is neither trivial nor transitory, and the unlawful act is at least a contributing cause of the victim’s death, outside the de minimis range, then the person is guilty of manslaughter.” p. 333 – Arbour J.A.