[5] Section 234 of the Criminal Code defines manslaughter as “culpable homicide that is not murder or infanticide.” A person can commit culpable homicide in several ways. The route to manslaughter engaged by this case is provided in s.222(5)(a), which states that a person commits culpable homicide when he causes the death of a human being by means of an unlawful act.
[6] There are three essential elements of the offence of unlawful act manslaughter. To prove the offence, the Crown must establish beyond a reasonable doubt that: (i) the defendant committed an unlawful act, referred to as the predicate offence; (ii) the unlawful act presented an objectively foreseeable risk of bodily harm that is neither trivial nor transitory; and (iii) the unlawful act caused the death of a human being: see R. v. Javanmardi, 2019 SCC 54, [2019] 4 S.C.R. 3, at paras. 25-31; R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, at paras. 72-78; and R. v. H.C., 2022 ONCA 409, at para. 34.
[7] The courts have previously dealt with similar factual scenarios. In Creighton, the accused was charged with manslaughter by means of an unlawful act after injecting an acquaintance with cocaine with her consent. In R. v. Brazier, 2023 ONSC 3191, the accused was charged with manslaughter after supplying fentanyl and cocaine to a man who had just been released from a rehabilitation facility. In R. v. Worrall (2004), 2004 CanLII 66306 (ON SC), 189 C.C.C. (3d) 79, the accused was similarly charged after supplying heroin to his stepbrother. In all these cases, the accused persons were convicted of unlawful act manslaughter.
[8] The predicate offence alleged in this case is trafficking in a controlled substance, namely cocaine and fentanyl, an offence under s.5 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). To prove the predicate offence, the Crown must prove beyond reasonable doubt that the defendant intentionally trafficked in a controlled substance, and that the defendant knew the substance was a controlled substance: see R. v. Brodricks, 2021 ONSC 4466, at paras. 12-14.
[9] There is a long line of authority that a defendant’s honest belief that he or she was trafficking in some other illegal drug, and not the drug alleged, is not a defence: see R. v. Williams, 2009 ONCA 342, 95 O.R. (3d) 660, at para. 19; R. v. Burgess, 1969 CanLII 467 (ON CA), [1970] 2 O.R. 216 (C.A.); and R. v. Johnson, 2017 ONSC 1130, at paras. 17-18.
[10] As to the second element of unlawful act manslaughter, McLachlin J., writing for the majority in Creighton, at paras. 77-78, adopted an earlier statement in R. v. DeSousa, 1992 CanLII 80 (SCC), [1992] 2 S.C.R. 944, that “the test is one of objective foresight of bodily harm for all underlying offences. The act must be both unlawful… and one that is likely to subject another person to danger of harm or injury.”
[11] In the Javanmardi decision, at paras. 28-30, the court confirmed that there is no independent requirement of objective dangerousness; rather, that requirement is subsumed in the fault element of the offence. The court stated at para. 31 that, “The fault element of unlawful act manslaughter is, as noted, objective foreseeability of the risk of bodily harm that is neither trivial nor transitory, coupled with the fault element for the predicate offence.”
[12] Regarding causation, courts have considered both factual causation and legal causation. Factual causation is whether “but for” the defendant’s actions, the death would not have occurred: see R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at paras. 43-45; R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30, at para. 15; and H.C., at para. 38. However, for criminal responsibility, where it is alleged that the defendant’s unlawful act was a cause of the victim’s death, the Crown must prove legal causation: see Nette, at para. 45; Maybin, at paras. 15-16; and H.C., at para. 39.
[13] In R. v. Smithers, 1977 CanLII 7 (SCC), [1978] 1 S.C.R. 506, at para. 24, the court stated that an unlawful act that is “at least a contributing cause of death, outside the de minimis range” constitutes a legal cause of death. This is so even if the act alone would not have caused the death. In Nette, the court interpreted the standard in Smithers to mean “a significant contributing cause”: at paras. 71-73. Thus, in this case, to prove legal causation, the Crown must prove that the defendant’s unlawful act was a significant contributing cause of Rob’s death.
[14] Courts in Canada have consistently found that trafficking in a controlled substance is a legal cause of death where consumption of the substance leads to death: see Worrall, at para. 234; Brazier, at paras. 163-164.
THE ISSUES
[15] The Crown’s position is that the defendant committed an unlawful act by trafficking in a controlled substance, namely cocaine and fentanyl, contrary to the CDSA, that trafficking in those substances raised an objectively foreseeable risk of bodily harm, that the drugs in which he trafficked were purchased by Matt and consumed by Rob, and that the defendant’s unlawful act was a legal cause of Rob’s death.
[16] The defendant did not call evidence at the trial. Amicus, in consultation with the defendant, made most of the submissions that were for the benefit of the defendant. In summary, it is the defendant’s position that the Crown is unable to prove beyond reasonable doubt that the defendant sold any substance to Matt, or, in the alternative, the Crown is unable to prove the nature of the substance that he sold. Further, it is the defendant’s position that if I find that he sold a controlled substance to Matt, the Crown is unable to prove that the unlawful act of trafficking in that substance was a significant contributing cause of Rob’s death.
OBJECTIVELY FORESEEABLE RISK OF BODILY HARM
[74] Given my finding that the defendant committed the offence of drug trafficking, the second element of the offence, the objectively foreseeable risk of bodily harm, is fairly straightforward. Courts have regularly accepted that there is an objectively foreseeable risk of bodily harm that is neither trivial nor transitory where the predicate offence is trafficking in a controlled substance: see Creighton, at para. 82; Brazier, at paras. 173-176; and Worrall, at para. 15.
[75] In Worrall, at para. 15, Watt J. found that there did not appear to be any real controversy that trafficking in heroin, by injecting another with the controlled substance, or by providing the substance in injectable form, was an unlawful act that is likely to injure the other person.
[76] In Johnson, at paras. 26-28, Code J. accepted the comments of the preliminary hearing judge that there were significant dangers associated with using and consuming street drugs as their purity is suspect, and substances can be cut into street drugs. Thus, someone who provides street cocaine to another person reasonably ought to know that it may not be pure, and that there is an objective foreseeability that the substance may cause some degree of bodily harm. In that case, the court found that whether or not the accused knew that there was heroin mixed with the cocaine, he was responsible for providing the substance.
[77] In Brazier, at para. 174, Boswell J. noted that trafficking in controlled substances was illegal for very good reasons as such substances can be very harmful, and that those reasons were widely known and understood.
[78] In my view, the same sentiment expressed in those cases applies to the present case. Street cocaine and fentanyl are both dangerous drugs, the supply of which to another person creates a foreseeable risk of bodily harm. It does not matter whether the defendant believed that the substance was cocaine or fentanyl or a mixture of both. In this case, the defendant’s act of trafficking in a controlled substance presented an objectively foreseeable risk of bodily harm to the consumer.
[79] Therefore, I find that the Crown has proved beyond reasonable doubt the second required element of the offence, namely that the unlawful act presented an objectively foreseeable risk of bodily harm.
LEGAL CAUSATION
[80] As I indicated previously, legal and factual causation merge in this case. That is, if I find that the defendant sold drugs to Matt and those drugs caused Rob’s death, then the unlawful act was a significant contributing cause of death, and Rob’s death would not have occurred “but for” the defendant’s unlawful act.
[81] In this case, the causation issue can be distilled into two questions. First, did Rob consume the drugs that the defendant sold to Matt? Second, were the drugs that were found in Rob’s pocket part of the supply of drugs that the defendant sold to Matt?
[96] Therefore, I find that drugs found in the plastic bag in Rob’s pocket matched the description of the drugs that Matt had purchased from the defendant.
[97] Moreover, I find that the amount of the drugs found in Rob’s pocket supports the theory that those drugs were part of the supply that had been sold by the defendant to Matt. On Matt’s evidence, the original amount of drugs purchased was just less than two grams. Each of the three friends did one line of the substance. If we assume that each line is approximately .1 gram, then the left-over amount would weigh something less than 1.7 grams. In fact, the substance found in the bag in Rob’s pocket, plus the bag itself, weighed 1.66 grams.
[98] For these reasons, I find that the drugs found on Rob’s person were part of the supply of drugs sold by the defendant to Matt.
[99] In submissions, amicus brought to my attention the fact that in this case there seems to be some evidence that is missing or absent. For example, police officers did not thoroughly search Rob’s residence, and if they had done so, there may have been better evidence as to whether there were any other illegal substances in the residence. Further, police officers did not search the cell phones that were owned by Rob or Sheldon, and if they had done so, there may have been better evidence as to whether there was any other source of drugs. Amicus also pointed out that the police cannot explain how the drugs ended up in Rob’s pocket. There was no DNA testing done on the bag.
[100] In the case of an incomplete police investigation, I acknowledge that the defendant is entitled to question the failure of police to pursue certain leads as discussed in R. v. Bero (2000), 2000 CanLII 16956 (ON CA), 39 C.R. (5th) 291(Ont. C.A.), at para. 57, as the absence of evidence in some cases can be important in deciding whether the Crown has proved its case beyond reasonable doubt. However, the law is well settled that an accused does not have a constitutional right to an adequately investigated case, nor does the accused have a right to a particular kind of disclosure, or type of investigation: see R. v. Spackman, 2012 ONCA 905, at para. 108.
[101] The defendant’s concern here about the police investigation raises the question of an absence of evidence, but it does not negate the evidence before the court. If there is missing evidence, the court must still determine the case. The question is whether the Crown can prove its case based on the evidence before the court.
[102] In this particular case, for reasons I have just explained, I conclude that Rob consumed drugs that had been sold by the defendant to Matt, and that the remaining portion of those drugs were found in Rob’s front pocket by police officers. The drugs found in Rob’s possession, and the drugs consumed by Rob, contained fentanyl and cocaine. Rob died as a result of a fentanyl and cocaine overdose. Therefore, I find that the Crown has proved beyond reasonable doubt that the defendant’s unlawful act of selling a controlled substance to Matt is a legal cause of Rob’s death.
CONCLUSION
[103] In summary, I find that the Crown has proved beyond reasonable doubt all of the elements of this offence. The defendant committed the unlawful act of trafficking in a controlled substance, the unlawful act presented an objectively foreseeable risk of bodily harm, and the unlawful act was a legal cause of Rob’s death.
