[66] The unlawful act requirement in unlawful act manslaughter demands that the prosecutor prove beyond a reasonable doubt:
i. that Joseph Worrall trafficked in heroin, a controlled substance, to Brendan Carlin;
ii. that trafficking in heroin in the circumstances is a dangerous act, in other words, an act that is likely to injure another; and
iii. that a reasonable person who supplied heroin to another in these circumstances would foresee a risk of bodily harm to that other person, which is neither trivial nor transitory in the circumstances.
See, R. v. Creighton, above, at pp. 371-73 per McLachlin J; and R. v. DeSousa (1992), 1992 CanLII 80 (SCC), 76 C.C.C. (3d) 124 (S.C.C.) at p. 137, per Sopinka J.
b. The Act of Trafficking
[67] During the late evening of January 1, 2000, Joseph Worrall obtained some heroin from Nguyen To, a supplier with whom he had had prior similar dealings. He acquired enough of the drug to prepare two syringes. One syringe was for Joseph Worrall, the other for Brendan Carlin who needed heroin to "even up" the effects of ecstasy he had taken earlier.
[68] By his own admission to Det. Cst. Chiasson, Joseph Worrall gave Brendan Carlin heroin, perhaps too much heroin. Whether Joseph Worrall injected Brendan Carlin with the syringe of heroin he prepared in To's apartment, or simply provided the syringe to his stepbrother so that Brendan Carlin could self-inject, and with the knowledge and encouragement that he do so, is of no legal consequence in these circumstances.
[69] Even without Joseph Worrall's admission, the circumstantial evidence supports the conclusion that Joseph Worrall trafficked heroin to Brendan Carlin as alleged in the indictment. Joseph Worrall prepared two syringes. One for himself. One for Brendan Carlin. He told To that Brendan needed the heroin to "even up" the effects of ecstasy. Joseph Worrall had injected Brendan Carlin with heroin on earlier occasions. Carlin was an inexperienced user. Joseph Worrall was an experienced heroin user and addict. According to To, Brendan Carlin was "downstairs" when Joseph Worrall prepared the syringes for injection. His body was found 15 hours later in an area immediately adjacent to the parking lot at the back of To's residence. Heroin consumption was evident on post-mortem.
[70] I do not regard as credible Nguyen To's assertion that Joseph Worrall returned to the apartment and claimed that he could not find Brendan Carlin "downstairs", at least to the extent that by it To means to leave the impression that Joseph Worrall could not find his stepbrother to inject him with heroin. To was not the most helpful, or truthful of witnesses. His explanation for the several items of property found in his apartment, as well for his source of income, defies belief. He is a drug trafficker whose principal motivation in giving evidence was to distance himself, as best he could, from the administration of heroin to Brendan Carlin on January 1, 2000.
[71] There is and could be no controversy that trafficking in heroin, especially by injecting an occasional user who had taken other drugs and is asthmatic, is a dangerous act that is likely to injure or cause harm to the person injected.
c. The Mental Element
[72] There is also a mental or fault element in unlawful act manslaughter. What must be established is objective foreseeability of the risk of bodily harm, which is neither trivial nor transitory in the circumstances.
[73] The mental or fault element in unlawful act manslaughter is infrequently the subject of evidence at trial. It is rather a common sense inference drawn from the nature of the unlawful act and the circumstances in which the act took place.
[74] There is no real controversy about the adequacy of the prosecutor's proof of this essential element of unlawful act manslaughter. Nor could there be. The inference that a reasonable person would foresee, from the injection of heroin, a risk that the recipient would suffer bodily harm that was neither trivial nor transitory in the circumstances is, for all practical purposes, irresistible.
d. Conclusion
[75] In the result, I am satisfied beyond a reasonable doubt that the unlawful act requirement in unlawful act manslaughter has been met.
[202] To determine whether a person can be held criminally responsible for causing a particular result, in this case the death of a fellow human being, it is necessary to decide whether that person caused that result both in fact and in law. See, R. v. Nette, above, at p. 505 per Arbour J.
[203] Factual causation has to do with an inquiry about how the deceased came to his or her death, in a medical, mechanical, or physical sense, and with the contribution of the accused to that result. Once factual causation has been established, the issue of legal causation remains. See, R. v. Nette, above, at p. 505 per Arbour J.
[204] Legal causation, on the other hand, involves the question whether the accused should be held responsible in law for the deceased's death. It is informed by legal considerations like the wording of the offence-creating provision, and the principles of statutory interpretation. See, R. v. Nette, above, at p. 505 per Arbour J.
[205] Before recording my factual findings, there are some legal principles relating to causation that warrant statement and brief exposition.
b. Manslaughter as Unlawful Homicide
[206] Under our law, a person commits homicide when she or he, directly or indirectly, by any means, causes the death of a human being. Not all homicide is unlawful or criminal. Homicide is either blameworthy, or it is not blameworthy. To borrow the language of s. 222(2) of the Criminal Code, homicide is culpable or not culpable. And it is only culpable homicide, or blameworthy killing, which is a crime.
[207] There are three crimes of culpable homicide under our law.
• murder
• manslaughter
• infanticide
Every blameworthy killing will be one, but not more than one of these crimes.
[208] Manslaughter is a residual form or crime of culpable homicide: it is a blameworthy killing that is not murder, and not infanticide. See, Criminal Code, s. 234. Manslaughter may be committed where one person causes the death of another by an unlawful act, but does not have the state of mind required to make the unlawful killing murder.
c. The Standard of Causation
[209] In an earlier paragraph, the decision in Nette, above, was summoned in support of the distinction between factual and legal causation. It could have been added that in a jury trial the jurors do not engage in a two-part analysis of whether both factual and legal causation have been established. Rather, the jurors are instructed about the degree of factual and legal causation that must be established before an accused can be held criminally responsible for the deceased's death. See, R. v. Nette, above, at p. 506 per Arbour J. Where the trier of fact and law is one and the same, the same principles apply.
[210] It is helpful to remember that the answer to the factual question of whether an act caused death can only come from the evidence adduced at trial, whether testimony, exhibit, or admission. The work or role of expert witnesses in proof of factual causes was felicitously described by Dickson J. in R. v. Smithers, above, at p. 435, in these terms:
Expert evidence is admissible, of course, to establish factual cause. The work of expert witnesses in an issue of this sort, as Granville [sic] Williams has pointed out ("Causation in Homicide", [1957] Crim. L.R. 429 at p. 431), is "purely diagnostic and does not involve them in metaphysical subtleties"; it does not require them to distinguish between what is a "cause", i.e., a real and contributing cause of death, and what is merely a "condition", i.e., part of the background of the death. Nor should they be expected to say, where two or more causes combine to produce a result, which of these causes contributes the more.
[211] But expert evidence is only part of the sum total of evidence upon which a trier of fact may rely to decide whether the causation requirement has been proven with the necessary degree of certainty. As Dickson J. explained in Smithers, above, at p. 435:
The issue of causation is for the jury and not the experts. The weight to be given to the evidence of the experts was entirely for the jury. In the search for truth, the jury was entitled to consider all of the evidence, expert and lay, and accept or reject any part of it. Non-medical testimony is available to both the Crown and the accused �c
[212] To satisfy the causation requirement in unlawful act manslaughter cases, the prosecutor must establish that an accused's unlawful act was at least a contributing cause of the deceased's death, outside the de minimis range. See, R. v. Smithers, above, at p. 435 per Dickson J; and R. v. Nette, above, at p. 515 per Arbour J. While it may be more useful and helpful in a jury case to express the standard of causation in a more direct and affirmative way, for example as a "significant contributing cause", the Smithers standard remains the test to be applied.
[213] It is also worth reminder that in homicide cases, the person charged takes his or her victim as he or she finds them. See, R. v. Smithers, above, at p. 437 per Dickson J. so if, for example, a victim has respiratory difficulties associated with asthma, she or he may be more susceptible to illicit drugs that affect the respiratory system than others without the condition.
[214] It should scarcely surprise, in some cases at least, that medical or other scientific experts may differ about the role of certain drugs or conditions in the death of the deceased, and may not be able to establish a single conclusive medical cause of death. See, R. v. Nette, above, at p. 518 per Arbour J.
[215] The function of the trier of fact in cases where there is evidence of competing causes, or where experts differ about which cause predominated is well described by Beldam L.J. on behalf of the Court of Appeal in R. v. Cheshire, [1991] 3 All E.R. 670 at p. 677:
It is not the function of the jury to evaluate competing causes or to choose which is dominant provided they are satisfied that the accused's acts can fairly be said to have made a significant contribution to the victim's death. We think the word "significant" conveys the necessary substance of a contribution made to the death which is more than negligible.
This passage was quoted with apparent approval by Arbour J.A. in Cribbin, above, at p. 84.
[225] In an earlier part of these reasons, I have found that Joseph Worrall trafficked in heroin to Brendan Carlin. It was a hit that Worrall, an addict and experienced user, thought might have been too much. And he gave it to his stepbrother, an asthmatic, whom Joseph Worrall knew had taken ecstasy, in order to "even out" the effects of the ecstasy.
[226] About 15 hours after Joseph Worrall injected Brendan Carlin with heroin, perhaps too much heroin, a passerby found Brendan Carlin's body at a construction site, adjacent to a parking lot where the stairs to the apartment where Joseph Worrall got the heroin ended. At autopsy, Dr. Chiasson noticed two needle puncture wounds on the front of the deceased's left mid-forearm. Associated with these puncture wounds was an area, about 6.5 by 5 centimeters, of reddish-brown contusion or bruising. There was a small amount of blood at the puncture sites. The colour of the bruising was indicative of injection from minutes or hours prior to death, to within 24 or 48 hours prior to Brendan Carlin's demise.
[229] According to toxicological literature accepted by experts in the field, the concentrations of morphine, which reflects heroin ingestion, and MDMA, are both within a range of concentrations in which fatalities have been reported, but do not always occur. The concentration of alcohol in blood and urine is quite modest and, apart from its synergy with the other central nervous system depressant, heroin, would produce, at worst, modest impairment.
[230] Neither MDMA nor MDEA are central nervous system depressants, like heroin and alcohol. MDMA and MDEA are kindred spirits, party drugs, often consumed at raves and similar activities. They are sympathomimetic drugs that take more time to reach peak plasma than heroin. Their effects include but are not limited to increased blood pressure and heart rate, as well as hyperthermia. To the extent deaths occur where these drugs are involved, they often occur when the consumer is in a comatose or sleep state, but rarely where MDMA or MDEA is the only drug on board.
[231] In deciding whether the prosecutor has proven beyond a reasonable doubt that Joseph Worrall's provision of heroin to Brendan Carlin was at least a contributing cause of Brendan Carlin's death, it is my obligation to consider, as I have, all the evidence, not just the opinions of the experts. And it is of surpassing importance to confine the experts' opinions to their areas of expertise.
[232] Toxicology is a branch of science that deals with the nature, effects, and detection of poisons. Toxicologists are not medical doctors. To the extent that they proffer opinions about cause of death, in my respectful view, they overreach their expertise.
[233] Pathology is the science of the causes and effects of diseases, in particular it is the branch of medicine that deals with the laboratory examination of samples of body tissue for diagnostic or forensic purposes. A forensic pathologist offers opinions about the cause of death and certifies what caused it.
[234] Taken as a whole, the evidence satisfies me beyond a reasonable doubt that Brendan Carlin died from the combined toxicity of several drugs, including the heroin administered by his stepbrother Joseph Worrall. The heroin was at least a contributing cause of death, outside the de minimis range.
[235] There is no reason to accept, and good reason to reject what I will term (for want of a better descriptive) the "single drug" or exclusive cause of death. The undeniable reality is that toxicological testing of bodily samples revealed the presence of several drugs. Two controlled substances, heroin (as reflected by morphine) and MDMA, were detected in concentrations that have previously proven fatal, at least in some cases. Another, MDEA, was not quantified. Ethyl alcohol, which potentiates the effect of its central nervous system depressant sibling, heroin, was also found in modest levels. It defies reason and common sense to suggest that the cocktail can be unmixed, or the omelette unscrambled to sort out one ingredient, and attach the label "cause of death", exclusive or "sole cause of death" to it.
[238] In all the circumstances, I have no hesitation in dismissing as scientifically unsound, inherently suspect, and unworthy of reliance, Dr. Herrmann's opinion of asthma, hypothermia, and MDMA intoxication as "competent causes" of Brendan Carlin's death.
[239] I have considered carefully Dr. Goldberger's criticisms of the toxicological testing done or omitted in this case:
• the failure to quantitate the levels of free and total morphine;
• the failure to test blood for 6MAM;
• the failure to quantitate the level of MDEA found in the deceased's heart blood;
• the failure to test for salbutamol in the blood, and measure the amount remaining in the inhaler;
• the failure to test the deceased's hair to determine whether he was a naïve or chronic heroin user.
[240] The failure to quantitate the levels of free and total morphine and to test the blood for 6MAM, has more to do with ascertaining whether the deceased's death was rapid after the heroin injection or delayed, than it does with whether heroin was a contributing cause of the deceased's death, which Dr. Goldberger himself acknowledges. It is also important to recall that Brendan Carlin was found literally yards away from the site of heroin supply and had taken heroin on board after consuming ecstasy.
[241] MDEA is a sympathomimetic drug. According to Dr. Goldberger, it is rarely fatal on its own. There is not much known about this stimulant, although it would probably act in the same way as MDMA. It may also be found as an impurity in MDMA, a drug that Dr. Goldberger described as "a closed box".
[242] No one can gainsay, especially with the benefit of hindsight and limitless resources, that it would have been preferable that all drugs found in the deceased's blood and urine had been analyzed or tested fully, and their concentrations quantified. So too, salbutamol. But perfection is rarely reality. And perfection is not a condition precedent for finding proven an allegation of crime. That said, it is familiar ground that a lack of evidence, which could be the result of a lack of full and complete testing and analysis, may leave a trier of fact with a reasonable doubt about the proof of some essential element of a crime, including, as here, causation.
[243] As I understand it, there is no suggestion in Dr. Goldberger's evidence, which mirrors his reports, that Brendan Carlin died from anything other than MDMA intoxication or the combined toxicity of heroin, MDMA, and ethanol. While I am satisfied that a toxicologist may not opine on the cause of death, subject to what I have said earlier about scientific findings that include death as a consequence of certain concentrations or ranges of concentration of drugs, I did not understand Dr. Goldberger to suggest that MDEA alone was usually associated with death. And the inclusion of MDMA as the sole cause of death is no more sustainable out of his mouth than it is coming from Dr. Herrmann. The mixture cannot be unmixed.
[244] And then there are the suggestions of asthma and hypothermia. Both are neither more nor less than speculation upon which I am disentitled to rely. The fact that an asthmatic is found with an inhaler in near-freezing temperatures, yards away from where he was injected with heroin hours earlier does not raise a reasonable doubt about the role of heroin as a contributing cause of Brendan Carlin's death. The failure to test bodily fluids for the presence of salbutamol, the similar failure to measure the puffs or dosages remaining in the interior, alone, together, and with the remainder of the deficiencies in scientific testing do not raise a reasonable doubt about the causal link between Joseph Worrall's injection of heroin and Brendan Carlin's death.
e. Conclusion
[245] For the reasons given, on which I reserve the right to expand, if required, I am satisfied beyond a reasonable doubt that Joseph Worrall unlawfully caused the death of Brendan Carlin by injecting him with heroin.
