L'infraction d'homicide involontaire coupable basée sur un trafic de Fentanyl

R. v Brazier, 2023 ONSC 3191

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[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.

Le droit relatif aux infractions moindres et incluses (3 catégories)

R. c. Ross, 2019 QCCA 614

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[13]        Enfin, l’article 662 C.cr. autorise les déclarations de culpabilité d’infractions incluses pour trois catégories d’infraction : 1) les infractions incluses prévues aux paragraphes 662(2) à (6) C.cr.; 2) les infractions incluses dans la loi qui crée l’infraction imputée; et 3) les infractions qui deviennent incluses par l’ajout de mots dans la description de l’accusation principale portée contre l’accusé[6].

[14]        Trois enseignements ressortent de l’arrêt R. c. G.R.[7] rendu par la Cour suprême en 2005 :

1)   Une infraction est incluse si ses éléments constitutifs sont compris dans l’infraction imputée. Le critère est strict et l’infraction imputée doit « nécessairement » être comprise dans l’infraction reprochée. Ce qui n’est pas « nécessairement compris » est exclu[8].

2)   L’interprétation stricte de l’article 662 C.cr. est liée à l’exigence de notification raisonnable du risque couru sur le plan juridique, non seulement pour l’infraction reprochée, mais aussi pour les infractions qui seraient incluses. L’accusé doit connaître l’ampleur exacte du risque qu’il court sur le plan juridique[9].

3)   L’infraction imputée telle que décrite dans le chef d’accusation doit contenir les éléments essentiels de l’infraction qualifiée d’incluse[10].

Revue du droit par la Cour d'appel de l'Ontario de l’infraction de complicité de meurtre après le fait

R. v. Osman, 2025 ONCA 516

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[38]      Accessory after the fact offences are offences against the administration of justice. By knowingly assisting the principal to escape, the accessory interferes with the investigation of a criminal offence and the administration of justice: R. v. Wisdom, [1992] O.J. No. 3110 (Gen. Div.), at paras. 27-28.

[39]      The penalty provision for the offence of being an accessory after the fact to murder is contained in s. 240 of the Criminal Code. Parliament chose to enact a higher maximum penalty for the offence of being an accessory after the fact to murder – imprisonment for life – than the general penalties for other accessory after the fact offences set out in s. 463.

[40]      The conduct that constitutes the offence of being an accessory after the fact to murder is, like other accessory offences, defined by s. 23 of the Criminal Code. Section 23 of the Criminal Code provides as follows:

An accessory after the fact to an offence is one who, knowing that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling that person to escape. [Emphasis added.]

[41]      In the case of being an accessory after the fact to murder, the elements of the specified offence the accessory is alleged to have assisted the principal to escape are defined by s. 229. The elements of the underlying specified offence are relevant to the knowledge requirement in s. 23 and the requirement for proof that the principal committed the specified offence.

[42]      The Crown must prove the following elements to prove a charge of accessory after the fact to murder:

1.   that the principal[4] committed murder (or, as I explain below, an included offence to murder);

2.   that the alleged accessory knew that the principal committed murder (or an included offence);

3.   that the accessory provided assistance to the principal; and

4.   that the accessory provided assistance for the purpose of helping the principal to escape.

See: David Watt, Watt’s Manual of Criminal Jury Instructions, 2024, (Toronto: Thomson Reuters, 2024) at Final 103, p. 443; Duong 1998, at pp. 399-401, and 403; Knott, at pp. 4-5; D. Murray Brown, “Accessory After the Fact”, 2004 National Criminal Law Program: Substantive Criminal Law, Vol. 1, Section 2.5, at pp. 2-3.

[43]      Before proceeding further into the jurisprudence on the elements of the offence of accessory after the fact to murder, I pause to outline the legal principle that gives rise to the issue in this appeal.

[44]      The parties are in agreement that as an element of the offence of being an accessory after the fact to murder, the Crown must prove that the accessory’s acts that are alleged to have assisted the principal were committed after the victim is dead (combined with proof that the accessory knew about the unlawful killing at the time they assisted the principal). This requirement is explained by Blackstone:

The felony must be complete at the time the assistance is given, else it makes not the assistant an accessory. As, if one wounds another mortally, and after the wound given, but before death ensues, a person assists or receives the delinquent; this does not make him accessory to homicide; for till death ensues, there is no felony committed.

Commentaries on the Laws of England in Four Books by Sir William Blackstone, 1898, Book Four, p. 1454. See also: Knott, at p. 9; R. v. B.(A.), 1999 CanLII 6762 (B.C.S.C.), at paras. 19-22.

[45]      The requirement that the acts be committed after the victim is dead is consistent with the higher penalty for being an accessory after the fact to murder in s. 240 of the Criminal Code, as compared to the general penalty for accessory offences in s. 463: Duong 1998, at p. 399; B.(A.), at para. 22. It is also consistent with the knowledge requirement in s. 23 of the Criminal Code. Section 23 requires that an accessory after the fact commit the acts aiding the principal “knowing” that the principal “has been a party to the offence”. To the extent that actual knowledge is relied on by the Crown to satisfy the mens rea requirement, a person cannot actually know the victim is dead until they are dead. As Cory and Iacobucci JJ. noted in United States of America v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462, at para. 41:

In the Western legal tradition, knowledge is defined as true belief: “The word ‘know’ refers exclusively to true knowledge; we are not said to ‘know’ something that is not so” (Glanville Williams, Textbook of Criminal Law (2nd ed. 1983), at p. 160). [Emphasis in original.]

[46]      Wilful blindness can also satisfy the mens rea for accessory offences, but is not relied on by the Crown in this case. Wilful blindness is considered in more detail in the companion appeal of Rashed.

[47]      The requirement that the assisting acts must be done after the death of the victim to constitute the offence of being an accessory after the fact to murder gives rise to the issue in the appeal. There is no dispute that the respondent assisted Mr. Khiar to escape from the scene of the shooting. But it is also not in dispute that those acts took place in the immediate aftermath of the shooting, and were completed long before the death of Mr. Teme, which happened three days later. The Crown accepts that because Mr. Teme was still alive when the respondent assisted Mr. Khiar in escaping, the respondent cannot be convicted of accessory after the fact to murder, and that the trial judge was correct in not leaving the full offence to the jury.

[48]      The first element of being an accessory after the fact requires the Crown to prove that the principal committed the specified offence (or, as I discuss below, an included offence). Doherty J.A. explained this requirement in Duong 1998:

It is usually irrelevant on the trial of an accused that some other person committed a different offence than that charged against the accused. The charge of being an accessory after the fact is, however, an exception to this generalization. To convict an accessory, the Crown must prove that the alleged principal committed the offence set out in the indictment. Here, the appellant could only be convicted if the Crown proved beyond a reasonable doubt that Lam had committed murder: R. v. Anderson (1980), 1980 ABCA 276 (CanLII), 57 C.C.C. (2d) 255 at p. 256 (Alta. C.A.).

See also R. v. Dagenais, 2018 ONCA 63, at para. 7.

[49]      The knowledge requirement in the second element of the accessory offence requires the Crown to prove that, at the time the accessory provided the assistance to the principal, the accessory knew that the principal had committed the specific offence alleged (or, as I discuss below, an included offence). Knowledge on the part of the accessory that the principal committed some criminal offence is insufficient. I note that the case law in relation to the specific offence requirement focuses on the second element of the accessory offence – the accessory’s knowledge that the principal committed the specified offence. This focus of the case law reflects the practical reality that it is more often the knowledge of the alleged accessory that is in dispute than whether the principal committed the specified offence. However, the requirement that an accessory offence must be proven in relation to a specific offence committed by the principal is equally applicable to the first element of the offence – the requirement that the Crown prove that the principal offender committed the offence.

[50]      Doherty J.A. explained the requirement that the accessory knew of the specific offence committed by the principal in Duong 1998, at pp. 399-401:

Section 23(1) contemplates aid given to someone who has committed an offence (the principal) by a person who knew that [the] principal had committed that offence when the assistance was provided….

It is significant that the crime of being an accessory after the fact to murder has its own penalty provision (s. 240) which is more severe than the penalty provision applicable to those who are accessories to other crimes (s. 463). This is a further indication that where the Crown chooses to charge someone with being an accessory after the fact to murder, it cannot gain a conviction based on a more generalized knowledge that the principal had committed some crime.

There is little Canadian case law dealing with the knowledge requirement in s. 23(1), perhaps because the language of s. 23(1) is unambiguous….

A charge laid under s. 23(1) must allege the commission of a specific offence (or offences) and the Crown must prove that the alleged accessory knew that the person assisted was a party to that offence. [Emphasis added]

[51]      The requirements that the Crown prove that the principal committed the specified offence and that a person charged with an accessory offence must have knowledge of the specific offence committed by the principal (as specified in the indictment) are broad enough to cover offences which are included offences to the specified offence. In Duong 1998, at footnote 3, Doherty J.A. noted that it would appear that a person charged with accessory after the fact to murder may be convicted of the included offence of being an accessory after the fact to manslaughter. See also R. v. Webber (1995), 1995 CanLII 333 (BC CA), 102 C.C.C. (3d) 248 (B.C.C.A.), at paras. 16-25; David Watt, “Accessoryship after the Fact: Substantive, Procedural and Evidentiary Considerations” (1981), 21 C.R. (3d) 307, at pp. 318-19.

[52]      Based on the fact that accessory after the fact offences are administration of justice offences, and relying on s. 23.1 of the Criminal Code, the Crown argues that the principal’s trial or verdict does not determine the liability of the alleged accessory.

[53]      As it relates to accessory offences, s. 23.1 provides that s. 23 applies “in respect of an accused notwithstanding the fact that the person whom the accused … receives, comforts or assists cannot be convicted of the offence.”[5]

[54]      I agree that the principal’s verdict does not determine the liability of the alleged accessory.[6] This is clear from the text of s. 23.1 of the Criminal Code. See also R. v. Duong (2001), 2001 CanLII 21276 (ON CA), 160 C.C.C. (3d) 467 (Ont. C.A.), at para. 19. However, I do not accept the Crown’s submission that seeks to divorce the liability of the accessory entirely from that of the principal.

[55]      Although accessory offences are administration of justice offences, the liability of the accessory is not freestanding. The liability of the accessory depends on evidence in the accessory’s trial establishing the commission of the specified offence (or an included offence) by the principal. Sections 23.1 and 592 of the Criminal Code provide that the conviction, or even charging, of the principal is not required as a precondition to liability for the accessory. However, those provisions do not have the effect of removing the requirements in the first two elements of accessory after the fact offences that the Crown prove that the principal committed the specified offence (or an included offence) and that, at the time they assisted the principal, the alleged accessory knew that the principal had committed the specified offence (or an included offence): Watt’s Manual of Criminal Jury Instructions, Final 103; Duong 1998 at pp. 399-401, and 403; Watt, “Accessoryship after the Fact”, at pp. 324-25; Don Stuart, Canadian Criminal Law, 8th ed., (Toronto: Thomson Reuters, 2020), at p. 698; D. Murray Brown, “Accessory After the Fact”, at pp. 6-9.

[56]      Based on the preceding review of the law, a person charged with being an accessory after the fact to murder can be liable for being an accessory after the fact to an included offence to murder.

Les éléments essentiels de l’infraction de complicité de meurtre après le fait

R. c. Anglade, 2023 QCCS 2478

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[41]        Dans le présent cas, le premier chef d’accusation reproche à l’accusé d’avoir agi comme complice de meurtre après le fait, contrairement à l’article 240 du Code criminel, qui stipule que :

240. Complice de meurtre après le fait – Tout complice de meurtre après le fait est coupable d’un acte criminel et passible de l’emprisonnement à perpétuité.

[42]        La notion de complice après le fait est pour sa part définie au paragraphe 23(1) du Code criminel, qui stipule que :

23. (1) Complice après le fait – Un complice après le fait d’une infraction est celui qui, sachant qu’une personne a participé à l’infraction, la reçoit, l’aide ou assiste en vue de lui permettre de s’échapper.

[43]        Les éléments essentiels de l’infraction de complicité de meurtre après le fait découlent du libellé de ces dispositions législatives et de leur interprétation par les tribunaux[15].

[44]        Pour prouver les éléments essentiels de cette infraction, le ministère public entend avoir recours à des éléments de preuve tendant à démontrer que l’accusé a fourni son aide : (1) en s’interposant afin d’éviter que Frédérick Silva puisse être retracé et (2) en faisant des démarches pour qu’il obtienne un passeport sous une fausse identité.