R. v Brazier, 2023 ONSC 3191
[151] This essential element requires the Crown to establish a nexus between the sale of fentanyl and cocaine by Mr. Brazier and the death of Mr. Glover.
[152] Causation in homicide cases has two aspects: factual causation and legal causation.
[153] Factual causation asks whether the death of the deceased would have occurred “but for” the actions of the defendant. See R. v. Maybin, 2012 SCC 24 at para. 20. Where factual causation is established, legal causation asks a further question, to wit, whether the defendant should be held criminally responsible for the death of the deceased based on the principles of moral responsibility as applied in the Canadian criminal law context. See R. v. Sundman, 2022 SCC 31 at para. 33.
[154] Legal causation serves a limiting function which narrows a wider range of factual causes into those “which are sufficiently connected to a harm to warrant legal responsibility.” See Maybin, at para. 16. In other words, legal causation is concerned with “who among those who has factually caused death should be held liable for causing that death in the eyes of the criminal law.” See R. v. Talbot, 2007 ONCA 81, at para. 80.
[155] Ultimately, designating a “but for” cause as a legal cause turns on a normative evaluation which reflects the common sense and moral instincts of the trier of fact. See R. v. Doering, 2022 ONCA 559 at para. 135.
[156] Legal causation is established where the Crown proves that the defendant’s conduct amounts to a “significant contributing cause” of the victim’s death. See R. v. Nette, 2001 SCC 78, at paras. 46-73.
[157] It is not necessary for the trier of fact to examine factual and legal causation separately. The significant contributing cause test joins the distinct inquiries. See R. v. Talbot, at para. 81.
[158] In the case at bar, there is a preliminary issue that goes to both factual and legal causation. Specifically, whether the Crown has established that the fentanyl sold to Mr. Glover by Mr. Brazier is the fentanyl that he overdosed on. In my view, the Crown has done so.
[159] I find that Mr. Brazier sold two points of fentanyl to Mr. Glover at roughly 1:00 p.m. He sold additional fentanyl to him at roughly 4:30 p.m.
[160] The Crown’s toxicologist, Mr. Currie, testified that it is not possible to “reverse engineer” the amount of fentanyl that must have been ingested to reflect the concentration observed in Mr. Glover’s femoral blood sample. Accordingly, it is impossible to say whether the amounts purchased by Mr. Glover from Mr. Brazier were sufficient to reach those levels.
[161] Having said that, I remain satisfied that Mr. Glover did not obtain fentanyl from any other source on March 23, 2020. I reach that conclusion for the following reasons:
(a) Mr. Brazier appears, from Mr. Glover’s phone records, to be the only person from whom Mr. Glover sought to purchase opioids on March 23, 2020;
(b) Mr. Glover contacted Mr. Brazier before he reached his residence and again shortly after he reached his residence around noon on March 23, 2020. Mr. Brazier, I find, attended with a supply of fentanyl and cocaine roughly an hour later. There is no indication that Mr. Glover reached out to any other supplier in the meantime;
(c) When Mr. Glover sought a further supply of opioids, he again reached out to Mr. Brazier, who met him again at 4:30 and provided him with further fentanyl and cocaine;
(d) It stands to reason that if Mr. Glover wished to obtain even more fentanyl on March 23, 2020, he would have again reached out to Mr. Brazier. There is no indication that he did;
(e) There is no indication that he reached out to any other third party to supply him with further opioids after 4:30 p.m.;
(f) The GPS location data from Mr. Glover’s cell phone supports the conclusion that he did not leave his residence after 4:36 p.m. other than to attend near a local convenience between about 5:01 p.m. and about 5:16 p.m. Ms. McTamney testified, and I accept, that the purpose of that excursion was to buy snacks. After that, Mr. Glover’s cell phone appears to have remained in the immediate vicinity of 8 Mary Street for the balance of the night.
It is possible, of course, that a third party could have attended at Mr. Glover’s residence to bring him drugs after 5:16 p.m. But I would, in those circumstances, expect to see some evidence on Mr. Glover’s phone that he attempted to reach out to another source for those drugs. That evidence is absent; and,
(g) Ms. McTamney testified that there were no further drug transactions that she witnessed throughout the day. I have found, of course, that there was a drug transaction between Mr. Brazier and Mr. Glover at about 1:00 p.m. that Ms. McTamney apparently did not witness. So it is certainly possible that Mr. Glover purchased other drugs during the day that he managed to keep from her attention. Ms. McTamney’s evidence about an absence of other drug transactions remains, however, one piece of circumstantial evidence that tends to support the conclusion that Mr. Glover did not purchase drugs from anyone but Mr. Brazier on March 23, 2020.
[162] Notwithstanding the determination that it was the ingestion of the fentanyl supplied by Mr. Brazier that led to Mr. Glover’s death, it remains to be determined whether Mr. Brazier’s conduct in supplying that fentanyl significantly contributed to Mr. Glover’s death. I am satisfied, beyond a reasonable doubt, that it did.
[163] Indeed, apart from the actual ingestion of the drug, it is hard to imagine a more significant contributing cause to a fentanyl overdose than the supply of the drug that caused death. And Mr. Brazier supplied it on March 23, 2020, not once but twice.
[164] Fentanyl is widely known to be a particularly dangerous drug. Those who traffic in it, traffic in death. They cannot be said to be morally innocent of the foreseeable consequences of so doing. As the Court of Appeal instructed in R. v. J.S.R., 2008 ONCA 544, at para. 33:
It must be borne in mind that legal causation is essentially about determining who among those who have factually contributed to an event should be held legally responsible for that event. Legal responsibility involves normative and moral judgments. It is entirely appropriate that all who participate in inherently very dangerous conduct should be said to have caused the foreseeable results of their conduct.
[165] To be fair, J.S.R. was a case that involved a shoot-out on the streets of downtown Toronto. A young female bystander was hit by an errant bullet and killed. J.S.R. was charged with her murder. While J.S.R. had been involved in the shoot-out, he did not fire the shot that killed the victim. A live issue was whether, in the circumstances, he could be said to have caused the death of a person that someone else shot.
[166] While the circumstances in J.S.R. are undoubtedly different than those here, the same reasoning nevertheless applies, in my view. A person who engages in inherently dangerous conduct – conduct that cannot be said to be morally innocent – should be said to have caused the foreseeable results of their conduct.
[167] Courts have, in fact, repeatedly concluded that the supply of controlled substances constitutes a significant contributing cause where death ensues as a result of the ingestion of those substances. See, for instance, R. v. C.W., 2006 CanLII 11225 (ON CA), 2006 O.J. No. 1392; R. v. Haas, 2016 MBCA 42, leave to appeal refused, [2016] S.C.C.A. No. 306; R. v. Valiquette, 2017 NBQB 27; and, R. v. Fournier, 2022 ONCJ 296.
[168] I note that in several Canadian cases, persons accused of manslaughter associated with the trafficking of controlled substances, have argued that the autonomous decision of the deceased to ingest the drugs breaks the change of causation, such that the supply can no longer be said to be a significant contributing cause. Although such arguments appear to have had some traction in the United Kingdom, they have generally been rejected in Canada. See R. v. Haas, as above. In any event, Mr. Brazier did not advance such an argument here.
[169] In all the circumstances, I am satisfied beyond a reasonable doubt that Mr. Brazier’s conduct, in supplying Mr. Glover with the fentanyl that killed him, contributed significantly to Mr. Glover’s death.
[170] I will move on to the final essential element of manslaughter – the consideration of whether the sale of fentanyl was objectively dangerous.
(ii) The supply of fentanyl was objectively dangerous
[171] The fault element, sometimes referred to as the mens rea, of the offence of manslaughter is defined as an objective foreseeability of a risk of bodily harm that is neither trivial nor transitory, coupled with the fault element for the predicate offence. See R. v. Javanmardi, 2019 SCC 54 at para. 31. Objective foreseeability of death is not a constituent element of the offence of manslaughter. See R. v. MacKinnon, 2021 ONSC 4763 at para. 725.
[172] Here, the predicate offence was trafficking in fentanyl and I have already addressed the fault element for that offence.
[173] Objective foreseeability of a risk of bodily harm that is neither trivial nor transitory engages the court in an assessment of whether a reasonable person in the same circumstances as the defendant would realize that his unlawful act would put another person at risk of bodily harm that is neither trivial nor transitory. The objective standard asks not what was actually in the defendant’s mind, but what ought to have been in his mind, had he proceeded reasonably. See Creighton, at para. 111; and, R. v. Plein, 2018 ONCA 748 at para. 35.
[174] Trafficking in controlled substances is illegal for very good and easily understandable reasons. In many instances, such substances can be very harmful. They may be addictive. And their consumption may result in injury or death. There is no quality assurance with street drugs. These facts are widely known and understood.
[175] It is also widely known that there is presently, and has been for a number of years, including the year 2020, an opioid crisis in this country. I take judicial notice of that fact and the fact that far too many Canadians are dying of opioid overdoses. Fentanyl is at the center of that crisis. It is a particularly insidious and dangerous drug. Reasonable Canadians are well aware of the danger that fentanyl use presents.
[176] In my view, a reasonable person in Mr. Brazier’s position on the occasion in question, would have realized that supplying Mr. Glover with fentanyl – even on one occasion, let alone two – would have put Mr. Glover at risk of bodily harm that was neither trivial nor transitory.
[177] In the result, I am satisfied, beyond a reasonable doubt, that the fault element of unlawful act manslaughter has been made out and a conviction will be entered on count 1 of the indictment.
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