Court File and Parties
ONTARIO COURT OF JUSTICE
DATE: 2022 06 30 COURT FILE No.: Halton 19-3958
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
MICHAEL KARL FOURNIER
Before: Justice Ann-Marie Calsavara
Heard on: September 28, 29, October 4, 5, 6, 7, 12, 13, 14, 19, 21, 22, 25, 26, 27, 28, 2021 and February 22, 23, 24, 25, April 5, 6, 7, 25, May 3, 2022
Reasons for Judgment released on: June 30, 2022
Counsel: Amy Stevenson, counsel for the Crown Malcolm McRae, counsel for the accused Mr. Fournier
Overview
1Mr. Fournier, a resident at a detention facility and server on his range, distributed a drug mixture containing fentanyl and carfentanil to several other inmates who were locked up in their cells at the time. Some of these other inmates ingested the drug off a purple card held by Mr. Fournier at the door of their cell. He also consumed a share of this drug.
2In short order, a number of these inmates overdosed, including Mr. Rattanbir Singh Sidhu, who tragically died.
3The drugs, which recently arrived on the range, were not Mr. Fournier's. They belonged to another inmate who agreed—as was the custom—to share his drugs with the powerful or influential men on the range.
4Mr. Fournier was one of these powerful men.
5And as the server, it was Mr. Fournier’s job—according to a code of inmate rules—to distribute anything the men on the range wanted to share while locked in their cells, including contraband like this drug.
6Mr. Fournier was charged with trafficking this fentanyl/carfentanil mix as well as unlawful act manslaughter flowing from Mr. Sidhu's fatal overdose.
7There is no dispute that Mr. Fournier took this drug from one of the other inmates, divided it up and delivered it to other inmates, several of whom experienced symptoms of overdose within minutes of ingesting it, including Mr. Sidhu.
8There is similarly no dispute that Mr. Sidhu died as a result of the combined toxic effects of carfentanil and fentanyl.
9The defence submits that Mr. Fournier's delivery of this drug to other inmates, in the circumstances, does not amount in law to trafficking. Rather, he was an 'agent for the purchaser' or a 'co-purchaser'. At most he is liable as possessor, making him not guilty of both the trafficking charge and the manslaughter charge--which is predicated on the unlawful act of trafficking in this dangerous substance.
10Alternatively, the defence argues that Mr. Fournier's actions in delivering this drug was not a voluntary one, but rather was induced by duress. If he broke the unwritten inmate code of conduct by not delivering these drugs, he faced violent repercussions from the powerful inmates in the hierarchy. Duress excuses his criminal behaviour and should result in acquittals.
11Thirdly and lastly, concerning the manslaughter count, if his conduct amounts to trafficking and he fails in his defence of duress, Mr. Fournier argues that that the Crown has failed to prove factual causation or legal causation. He says Mr. Sidhu would have gotten the drugs from someone else anyway. And, more particularly, he argues that intervening acts broke the chain of causation and he should therefore be found not guilty of manslaughter.
12The issues to be decided in this case are:
(1) Whether or not the Crown has proven beyond a reasonable doubt that Mr. Fournier's conduct in delivering the fentanyl-mix to other inmates constitutes trafficking? More specifically has the Crown shown that Mr. Fournier's acts were not as an agent for the purchaser or a simple co-possessor?
(2) Whether Mr. Fournier’s moral blameworthy act in committing trafficking and unlawful act manslaughter is excused. This turns on whether or not the Crown has disproven the defence of duress beyond a reasonable doubt.
(3) Was Mr. Fournier's actions in delivering and providing the fentanyl-mix to Mr. Sidhu “a significant contributing cause” of his death? If so, is this a case where legally the acts of Mr. Fournier should not be imputed as a significant contributing cause because of an intervening event or some other reason?
13Although couched as 'defences' raised by the defence, to avoid repetition, I wish to note here before embarking on my analysis of each of these issues that I have applied the principles related to the presumption of innocence and the burden of proof in reaching my conclusions.
14The burden is on the Crown to prove the accused's guilt beyond a reasonable doubt. The accused comes before the court with the presumption of innocence. He has a clean slate. The presumption is only discharged when, and if, the Crown proves the accused's guilt beyond a reasonable doubt. The Crown at all times bears the onus of proving the case against the accused. The accused needs not prove anything. The Crown is required to prove the essential elements of each offence to the reasonable doubt standard. I must assess the case on the whole and decide whether, on the basis of all of the evidence, or lack thereof, the Crown has proven the guilt of the accused beyond a reasonable doubt: R. v. Lifchus, [1997] 3 S.C.R. 320.
15Mr. Fournier testified in his defence. If I believe the defence evidence that is capable of supporting the defence of duress or is otherwise exculpatory, I must acquit. If I do not believe that evidence but it leaves me in reasonable doubt, I must acquit. Even if I am not left in doubt by the defence evidence, I must still consider, on the basis of the evidence that I do accept, if I am satisfied beyond a reasonable doubt of the guilt of the accused. If I cannot decide whether to believe the accused’s evidence or other evidence capable of supporting the defence position, or if I cannot decide who to believe, or I am unable to resolve conflicting evidence and therefore left in a state of reasonable doubt, I must acquit.
Has the Crown proven that Mr. Fournier trafficked (Agent for the purchaser defence)?
16Mr. Fournier was one of two servers on I-wing on May 7, 2019. I- Wing consists of a block of 13 cells down a narrow corridor. Opposite these 13 cells is a concrete wall. Along this corridor, in between, the cells and this wall is the communal space available to the inmates when not locked inside their cells. The space is narrow and furnished with five steal rectangular tables with four stools fastened to the ground. Additionally, there are a number of other single stools fastened to the ground along the concrete wall.
17Although designed for two, each of these cells at the time were housed by three inmates. Two inmates used the two beds. The third was required to sleep on a mattress on the floor. The exception was cell number 1, which housed the servers: Mr. Fournier and his cell-mate Mr. Duke.
18The two were servers and this entitled them to extra perks in addition to living two instead of three to a cell. Their duties included serving all the inmates on this wing their meals and collecting their trays. Servers remained outside the cells while the rest of the wing were locked inside. On a wing like this one, inmates were locked inside their cells for substantial periods including meal times. Servers were assigned by corrections staff. It is considered a privilege among inmates to be chosen to be a server because of the extra perks and freedoms associated to it.
19In addition to the official tasks, according to unwritten inmate code, servers were expected because of the freedom they enjoyed to pass objects back and forth among inmates and make deliveries while they were locked up. Mr. Fournier participated in these customs.
20Mr. Fournier also testified that it is also part of the unwritten inmate rules that if an inmate brings in contraband, such as drugs, he is expected to share a portion of it with the ‘mendem’ on the wing or range as the case may be. The mendem are the ‘main guys’ or powerful men in the political hierarchy on the range. An inmate achieves this status because of the type of inmate they are, their behaviour or their physical characteristics ie., body size and strength. Mr. Fournier testified he was part of the mendem due to his position as a server and because this is a status he had acquired amongst the other inmates over time even in the absence of his position as a server.
21There are consequences for breaching inmate rules—some of which are written on the unit's walls and some of which are unwritten, but well known. Consequences can include a minor slap openly on the range to a severe beating in the bathroom or shower area, hidden away from the cameras.
22Mr. Fournier had been a server on other housing units at Maplehurst prior to and following the death of Mr. Sidhu.
23In May of 2019, Mr. Fournier testified that Mr. Henderson, an inmate in cell 7 was at the top of the hierarchy in his unit due to his imposing size, strength, and capacity for violence. Mr. Fournier placed himself at the top of the hierarchy as well but below Mr. Henderson.
24On May 7th, Mr. Henderson openly yelled at Mr. Prosper during the dinner lock in period. He had learned that Mr. Prosper had drugs on the range which he had yet shared to his satisfaction. Mr. Henderson threatened Mr. Prosper that he would be assaulted later out on the range if he did not share.
25There is no issue that Mr. Fournier who was out on the unit, went to Mr. Prosper's cell, took some of the drug and spoke to Mr. Henderson. He gave Mr. Henderson some of the drug. According to Mr. Fournier this is when Henderson’s threat was made. Mr. Fournier returned to Prosper who offered up more of the drug and returned to cell 7 where Mr. Henderson was. Mr. Fournier obtained a purple card and a playing card from other inmates. He then sat down at one of the tables and divided up the drug and went to certain cell doors where several of the chosen inmates got their share and consumed the drug. Some of the inmates snorted lines right off the card as Mr. Fournier held it. Mr. Fournier also consumed a share of this fentanyl/carfentanil mix.
26Mr. Fournier argues, however, despite these acts, he is not guilty of trafficking because he only intended to be a possessor--along with the other inmates and/or acted as an agent for the purchaser, citing the Supreme Court decision in R. v. Greyeyes, [1997] 2 S.C.R. 825. In Greyeyes, the accused—an addict himself—at an uncover officer’s request helped him find a person who could sell him cocaine. The accused in that case was found to be a spokesperson for the purchaser and the one who brought the customer to the seller. He was the connection between the buyer and the seller. He escorted the buyer to the seller's apartment and negotiated with the seller to purchase the drug. Greyeyes accepted $10 from the buyer for facilitating the deal. The trial judge acquitted Mr. Greyeyes of trafficking in cocaine, finding him to be solely an agent for the purchaser—rather than someone who aided the seller. The Saskatchewan Court of Appeal overturned the acquittal and substituted a verdict of guilty based both on a theory of liability for Mr. Greyeyes as a principal and party. That Supreme Court dismissed the appeal but disposed of the appeal on the theory of party liability. The Court agreed with the Saskatchewan Court of Appeal on that issue and found that Mr. Greyeyes conduct made him liable as party to the trafficking. The test is whether the facts reveal no more than incidental assistance of the sale through rendering aid to the purchaser.
27Mr. Fournier, moreover, relies on his testimony that he took the drugs, divided it and dispensed it on Mr. Henderson's instruction. Mr. Fournier says he was just doing what everyone wanted and because he was the server and the one able to distribute the drug on the range. If he did not do that then, the other mendem would have gotten their share of the drug anyway.
28Even if I were to accept all of Mr. Fournier's evidence however, subject to his defence of duress, he must still be found guilty of trafficking.
29Trafficking is defined broadly in s.2(1) of the Controlled Drugs and Substances Act and includes "to sell, administer, give, transfer, transport, send or deliver the substance" or to offer to do any of those things.
30No monetary or other benefit needs to be received by the trafficker or party to the trafficker. It is true that a mere purchaser or possessor is not cast in this net. However because trafficking in controlled substances poses a significant risk to society Parliament has defined trafficking in a manner that "cast[s] a very wide net, the goal of which is to facilitate prosecution of individuals who participate in or contribute to the trafficking of narcotics” R. v. Neal, 2010 ONCA 281, leave refused [2010] S.C.C.A. no. 212.
31In R. v. Lloyd, 2016 SCC 13, a case involving a challenge to the mandatory minimum sentencing regime to repeat offenders, the majority of the Supreme Court recognized that the offence of trafficking casts this net over a wide range of conduct of varying levels of moral culpability:
30 Second, the definition of "traffic" in the CDSA captures a very broad range of conduct. It targets not only people selling drugs, but all who "administer, give, transfer, transport, send or deliver the substance" (s. 2(1)), irrespective of the reason for doing so and regardless of the intent to make a profit. As such, it would catch someone who gives a small amount of a drug to a friend, or someone who is only trafficking to support his own habit.
32The difficulty with Mr. Fournier's position is his role was not a mere aide to or a possessor for some innocent purpose. Mr. Fournier is the trafficker. He is a principal in the commission of the very acts which meet the definition of trafficking. He was not assisting Mr. Prosper as the trafficker; nor Mr. Henderson as the trafficker; but he was also not assisting anyone else as an agent for the purchaser either. Once Mr. Fournier took the drug, divided it and delivered it from person to person, the offence was complete. No ulterior or gratuitous purpose is required. The mens rea required is only the intent to do the specific act that constitutes the trafficking, which in this case is the intent to distribute (or give) the drug as he did, of which there can be no doubt. On these facts—subject to the defence of duress—his motive or reasons for doing so are immaterial.
33Similarly, unlike the case of R. v. Gardiner, [1987] 21 O.A.C. 117, cited by Mr. Fournier in support of his position that he is simply a co-possessor, this is not a possession case which turns on the purpose for which he possessed the drug. Regardless of why he acquired the drugs, Mr. Fournier is not a mere possessor. On the undisputed evidence, Mr. Fournier as a principal committed the offence of trafficking by completing -- as is captured on the CCTV footage -- one or more of the acts which constitute trafficking as set out in the CDSA.
34Consequently, I conclude that the Crown has established beyond a reasonable doubt that Mr. Fournier trafficked in the fentanyl/carfentanil mix when he gave or delivered it to other inmates on his range, and—subject to the excuse of duress—is guilty of trafficking.
Duress
35Mr. Fournier asserts that he did not voluntarily traffic the controlled substance to Mr. Sidhu and others on I wing; he had no real choice. He did so because of a threat from Mr. Henderson and /or the mendem --the powerful inmates at the facility-- as a group. Because Mr. Fournier is a server, he is obliged to pass around items from inmate to inmate when they are locked inside the cells, including contraband smuggled into the jail, like the fentanyl/carfentanil substance at issue here. Should he fail to, he risks being assaulted by other inmates.
36Moreover, Mr. Fournier testified that he took Mr. Henderson's threats to Mr. Prosper to hand over a portion of the drugs, as an implied threat to himself should he not obtain the drug and hand it out.
37Mr. Fournier does not have to prove this. He need only show that there is an air of reality to the defence. If there is an air of reality, then the onus is on the Crown to disprove the defence beyond a reasonable doubt.
38Since Mr. Fournier's liability hinges most directly on his role as a principal, the s. 17 statutory defence of duress is the most applicable. However, the Supreme Court clarified in R. v. Ryan, 2013 SCC 3 that there are five elements to this excuse shared by both the common law and statutory form:
- There must be an explicit or implicit threat of present or future death or bodily harm. This threat can be directed at the accused or a third party.
- The accused must reasonably believe that the threat will be carried out.
- There is no safe avenue of escape. This element is evaluated on a modified objective standard.
- A close temporal connection between the threat and the harm threatened.
- Proportionality between the harm threatened and the harm inflicted by the accused. The harm caused by the accused must be equal to or no greater than the harm threatened. This is also evaluated on a modified objective standard.
- The accused is not a party to a conspiracy or association whereby the accused is subject to compulsion and actually knew that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association.
39Mr. Fournier does not have to prove his conduct was involuntary because of the threat(s). He need only show there is an air of reality to this defence. The crown must prove beyond a reasonable doubt that at least one of the essential elements of duress is absent.
40Ms. Stevenson, on behalf of the Crown asserts that there is no air of reality to this defence because there is no evidence of even an implied threat -- just a vague and generalized fear of consequences should he not act. Furthermore, the Crown submits that by willingly accepting the job as a server and in fulfilling a high-up position in the inmate political hierarchy, Mr. Fournier is disqualified from relying on this excuse. It is said that he is a party to an association -- that is the mendem -- knowing he would have to distribute contraband, including controlled substances, or face the consequences he now complains compelled him to act on May 7, 2019.
41It is thin and a close call, but isolated portions of Mr. Fournier's evidence spliced from the rest of his testimony could arguably found a basis for this defence. A trier can accept some, none or all of a witness’ evidence.
42Mr. Fournier testified that Mr. Henderson threatened Roger Prosper when he discovered he had kept drugs he brought in without sharing them (or enough of them) with the mendem on the range. He took it as an indirect or implied threat to himself that 'he would be next' if he did not act and obtain and distribute the drug.
43However I do not accept that Mr. Fournier distributed the fentanyl on May 7 because of any threat -- assuming there was an implied threat here from Mr. Henderson or the mendem at large and not simply a generalized fear referenced by Mr. Fournier.
44Although he at one point connects taking and giving out this drug with the fear of being assaulted, Mr. Fournier—in his evidence—makes it clear that he is eager to fulfill this role as a server and specifically in distributing to others on the range. He testified that he only did what everyone wanted. He further testified that he himself took a share of this drug. He wanted it. Not only did he admit this, but his reactions to learning about and acquiring the drug as depicted on the CCTV footage show excitement - not compulsion and fear.
45Furthermore, Mr. Fournier whole-heartedly embraced this function. He considered himself popular and well-liked by the inmates and guards and who kept the peace. He commanded respect from fellow inmates. He was an enforcer and meted out punishment where he believed it was warranted; or as he called it, he would “issue it” himself. Mr. Fournier also described himself as a joker and a social butterfly on the range.
46Although the Supreme Court in Ryan does not spell out a required element that the threat caused the accused to have committed the offence, it is the foundation of the defence of duress that the threat invokes involuntary conduct: that is the accused committed the act at issue due to compulsion by threat. There is in effect no way out; hence, the act is a morally involuntary one.
47In Watt's Manual of Criminal Jury Instructions, 2nd edition 2015, Justice Watt explicitly includes this causal element as a necessary constituent to the defence.
48Although there is arguably some debate in the law as to whether the threat must be the only motivation as compared to being simply one operative motivation out of others, this causal element must be present to trigger the defence: R. v. McRae, [2005] 200 O.A.C. 315; R. v. Yumnu, 2010 ONCA 637. In his paper, "No-one Wants to Be Eaten: The Logic and Experience of the Law of Necessity and Duress" (2010), 56 Crim. L.Q. 240, Justice Paciocco expressed that the better view is that there is no “sole” reason requirement – so long as the threat is the operative cause. It need not be the sole factor influencing the accused: see pages 279-280.
49In either case, there must be a causal link between the threat and the unlawful act.
50In the result, I find that Mr. Fournier in trafficking the fentanyl-carefentil mix, did so willingly and eagerly not out of an implied threat from Henderson or the mendem —of which he was apart; nor was it even in response to any generalized fear of violent consequences. Simply put, Mr. Fournier distributed the drugs because he wanted it and he wanted to share it with his friends on the range. Mr. Fournier is popular. He liked being popular. Doing this helped.
51Upon questioning from the Crown, Mr. Fournier gave the following evidence:
Q. And also, because people want to party because jail is monotonous, right? A. Correct. Q. And so when drugs come on the range like we saw from you and Mr. Kieffer, you were excited? A. Correct. Q. And on that note, sir, you wanted to do these drugs with your, I'll say friends, but if you want to call them fellow inmates, but you wanted to do drugs with them, correct? A. Correct.
52Additionally, Mr. Fournier provided this evidence:
Q. And I think you've already agreed with me that you wanted to take the drugs, right? A. Yes. Q. You didn't have to take the drugs [indiscernible], right? A. Yes. Q. Nobody forced you to, right? A. No. And nobody forced me and nobody forced anybody else. Q. Nobody threatened you with bodily harm or death, right? A. No. Nor did I. Q. You wanted the party with the other guys on the range. A. I've been in for five months sober. As a drug addict, you want to get high, and that's what I did. I got high. Q. All right. And that's why you distributed... A. [Indiscernible]. Q. ...the drugs on the range to get high with your friends, right? A. Yes.
53To the extent that Mr. Fournier suggests that in distributing the drugs he was motivated or compelled by a threat I reject it; and it alone or with other evidence in this case — or lack of evidence — does not leave me in doubt.
54This aspect of Mr. Fournier's evidence was inconsistent with the overwhelming import of his testimony: that is Mr. Fournier embraced his role of server on the range, including the unwritten extras included in the job description from the inmates.
55Secondly, when questioned about the timing and specifics of Mr. Henderson's threat to Mr. Prosper -- the very threat which Mr. Fournier hinges his own involuntary conduct in obtaining and distributing this drug -- Mr. Fournier was unsure and inconsistent. Ultimately by the time Mr. Fournier already obtained the drug and was talking to Mr. Henderson about it at his cell door, Mr. Fournier testified he did not believe Mr. Henderson yet yelled out the threats to Mr. Prosper. The fact that Mr. Fournier already had, on his own evidence, some of the drug from Mr. Prosper and generally did not remember the timing of when Mr. Henderson yelled at Mr. Prosper belies the suggestion that Mr. Fournier's actions in obtaining and distributing this drug was compelled by this very threat as an indirect threat against him as well.
56Mr. Fournier did not have to be told to hand out the drugs to the mendem because that is what he already does as mendem himself. He himself, admittedly, enforces the rules and he was excited to share the drugs on the range.
57Having rejected Mr. Fournier’s evidence that he took Mr. Henderson’s threat to Prosper as an implied threat that he would “be next”, he at best had an underlying fear of losing his prominence or of potential consequences if he did not go along. This, however, is not what motivated Mr. Fournier.
58Based upon all the evidence I do accept, the Crown has proven beyond a reasonable doubt that a threat was not the cause of Mr. Fournier's actions, or the motivation for him to traffic in the controlled substance -- thus negating a required element of the defence of duress. Therefore, I find the Crown has disproven this defence beyond a reasonable doubt.
59In addition, I find the defence of duress also fails on the 'no safe avenue of escape' component. The Crown has shown to the beyond a reasonable doubt standard that this element is also absent.
60I next turn to that element of the defence
No safe avenue of escape
61This element requires me to consider whether there was some other way in which Mr. Fournier could have safely got out of the situation in which he found himself in other than by distributing the drug.
62If you can escape, there is no compulsion.
63It is a modified subjective test.
64I must consider whether there was a safe way to avoid the harm that that Mr. Henderson -- or the mendem at large -- threatened that a reasonable person in the same circumstances would have recognized and taken rather than traffic in the fentanyl mix. I instruct myself that a reasonable person is a person in the same situation as Mr. Fournier who shares Mr. Fournier's personal characteristics.
65Mr. Fournier testified that he had no real option other than to distribute the drug as expected. He had no alternative. If he pretended to be sick or otherwise quietly went to the guards the other inmates would figure out he was a ‘rat’. That would follow him where ever he went and he believes he would still face the violent consequences.
66However, his own evidence otherwise overwhelming reveals not that he had no escape but rather that the alternatives to trafficking were unpalatable to him.
67Mr. Fournier admitted he could have quietly found a way himself to get off the range while the inmates were locked in their cells. He just did not want to. It is also clear from his evidence that had he simply refused and not sought a safe avenue of escape from the guards on his own, it could have simply resulted in an ultimatum from the mendem on the range.
68Mr. Fournier provided the following evidence in chief:
Okay. But can, can the inmates influence whether you have that position or not? A. Absolutely. Q. How so? A. Well, they can give you an ultimatum. If they don't like you, they can tell you to either step down or get punched out. They can - sometimes they can even suggest who to put up. Sometimes it doesn't always get okayed, but they still try to make the suggestion.
69The subject was returned to later in his evidence in-chief:
A. Sorry, sorry. I could have went and told the guards, but that, that stuff does follow. I've done a lot of time and I've seen it. Jail is - it's only a small place. You can only go so many spots. And it's just - it's not a good thing and the guys that are on that range that particular day are also from my hometown. And ironically, they are friends with the guy that did this to me. So I just - I don't - no. I would have got assaulted in jail and out of jail. I would have - I would have - this probably would have happened all over again. Q. And when you say, assaulted, like, what do you mean? What kind of an assault do you think would have happened? A. My head stomped in by more than one guy. Because it's, it's more like one of those situations where, like, not only did I rat on the guy that had this, but then everybody else on the range just lost out because of what I did. So it, it, it's actually a big deal. Q. And what if you just refused to bring it from Prosper [indiscernible].... A. [Indiscernible] then I get the ultimatum of, I can get punched out or I can leave the range. Assaulted, sorry, and, and leave the range. And then it still gets known that I didn't do what I should have done and it - everything follows you, like....
70In speaking about how he feels in speaking about the mendem, Mr. Fournier testified:
It makes me nervous. Like, I don't know for sure if they're going to find out. Like, I actually, to be honest, back in December when the trial was started before, I got bounced off a range because everybody was asking me, they're like, oh, so how's your trial going? And I was explaining certain things. And then all of a sudden it got turned that I was trying to rat on somebody and I had a choice of either [indiscernible] range or getting punched out. I was - they gave me an ultimatum, so I had to leave the range.
71In that last excerpt, Mr. Fournier was referring to having to leave the range during this trial because of a belief he was, as he put it, a 'rat' for talking about this case.
72The Crown, Ms. Stevenson, returned to this area during cross-examination:
Q. And I believe you said you were bounced off the range. A. I was, yes. Q. That was the word you used? A. Yes. Q. And that was in relation to Kieffer suspecting maybe that you were talking about what had happened [indiscernible] this incident? A. Yes. Q. And so you were given the choice, stay on the range and get beaten or go to another range? A. Yes. Q. And you chose to go to another range? A. Yes.
73Mr. Fournier's evidence demonstrates he had a safe avenue of escape. Interestingly, he pursued that avenue on another occasion subsequent to this offence. He would have had an ultimatum. An ultimatum is a safe avenue of escape. His own evidence, therefore, shows, that someone similarly situated --that is him -- would have recognized a safe avenue. Or he simply could have found away to quietly leave the range on his own rather than comply.
74A fellow inmate on the range, and even one who is low on the hierarchy - who is not part of the mendem shows that someone similarly situated would recognize a safe avenue of escape. Mr. Kazi upon recognizing that Mr. Sidhu, was in distress went to ask Mr. Fournier's permission at that point to notify the guards of what transpired, that the inmates had ingested fentanyl. Mr. Fournier was well versed in the politics of the range and the ways in which he could have extricated himself.
75Mr. Fournier, however, simply did not want to leave the range and did not want to give up his position as a server there. That was his choice to make and it was not because of compulsion. He had his own reasons.
76Mr. Fournier did not want to give up the perks of being a server and he did not want to start all over in a new home on another range. He testified as follows:
Q. So pretty much every cell is triple bunked except for you and Duke, right? A. Yeah, because we're servers. Yeah. Q. And that's one of the perks of being a server? A. Yes, it is. Q. And there are other perks for being a server, as well, right? A. There are other, other perks, yes. Q. You have access to the phones when other people don't? A. That's correct. Yes. Q. You have access to the showers when other people don't? A. Correct. Q. And you deal with the guards for serving the meals? A. Yes. Correct. Q. Okay. You like being a server when you're in jail? A. I like the privileges, yes. Q. And you don't want to give up those privileges when you're in jail, right? A. At that time, no, I didn't.
77Later during cross-examination, Mr. Fournier gave this evidence:
Q. Okay. So just going back to the position on the range, sir, with everyone locked in the cells, you could have, if you had chosen to, feigned illness, right? A. Had what? Pardon me? Q. Pretended that you were sick and you had to get off the range because you were sick. A. And then - I guess I could have done that, yeah. And then I go from being a Server and, and having my own cell to being that guy that sleeps on the floor two feet away from a toilet. [Indiscernible]. Q. And that - and that what [indiscernible], sir. It's a choice. You made the choice to remain a server to commit crimes as a server because you liked the perks, right? A. That's because at that particular time my fiancée was pregnant with my son. So the, the only times that I could have called her were at certain times when everybody was locked up. If that makes me a bad person, I guess I'm a bad person. I didn't mean for anybody to get hurt. The guy was my friend. Q. But going back to my question, sir, you did not want to give up being a server, right? A. Right. Q. Did not want to give up the two people to a cell, access to the phone, access to the shower, et cetera. A. Correct. Q. And you were [indiscernible] to be one of the mandem and do what it took to keep that position, right? A. Correct. Q. You're telling us that what was included was knowingly trafficking in drugs when it came into the institution? A. That's correct. But shouldn't the guards that should have stopped it from coming in, shouldn't they be held be responsible?
78Mr. Fournier had many considered reasons why he wanted to remain as a server. He explained:
A. I was, I’m normally a mendem just because I’m a server. There’s perks to being a server. I, I like being able to use the phone when, at certain times, because that’s the only time that I can talk to my fiancé, at certain times, so, yeah, I try to keep the server position so I could use the phone at those certain times. I could get a 40-minute visit because you only get 20-minute visits if you’re normal, and you get a 40-minute visit twice a week. So when my fiancé comes from Cambridge or Kitchener, it’s not a waste of her time for 20 minutes just to come and see me, I can see her for 40 minutes and actually have a conversation. Q. Right. So you made a choice to stay as server and a mendem for reasons that were important to you, including Ms. Lowrey (ph) and your unborn child, correct? A. As a server, yeah; I don’t care about being a mendem. It’s not like I chose to be a mendem, it just happened. Q. And you told us you’re a mendem because you’re a server? A. I guess, yes. But because I chose to be a server doesn’t mean I chose to be a mendem; I chose to be a server for the perks. Q. Right, for reasons that are important to you? A. And reasons that are important to my mental health. Q. All right. A. Like you, I see the size of those of cells, can you imagine three grown men in that cell together; there’s no room to walk, nothing. So yeah, I chose to be a server for the perks, for, like, two people to a cell, to the phone calls, to the one extra meal that you might get, to the one sticky bun I get every day
79Mr. Fournier agreed he had options. Ms. Stevenson cross-examined him as follows:
Q. It seems like a pretty obvious way to get off the range without having to rat out the drugs... A. Again, you should... Q. ...right? A. ...you should do some, you should do some jail time and tell me how that works, ‘cause it’s easy for you to say when you, when you’ve never been to jail. Q. Okay, but.... A. It’s like people that try to tell me abut my drug addiction, I’ve never had a drug addiction. You guys don’t actually know, so no matter what I say, no matter what I try to explain to you, you’re just still gonna keep going on the same thing. Q. So... A. Disagree with everything you’re saying. Q. ...I’m gonna ask you to assume that you did pretend to be ill and got taken off the range, you wouldn’t have to rat them out for the drugs if you did that, right? A. But that’s what you’re suggesting I should have done, I should have ratted them out, or I should have just cracked off the range. Q. I’m pointing out to you, sir, that you made a choice? A. Yeah, and when you spend some weeks only in one spot for a long period of time; like I’ve been there for five months. It’s like living in your house for five months and then one day just having to get up and leave, not knowing where you’re going, put into another place with somebody you don’t know, it’s not easy. It’s easy for you to say that’s what I should have done, but try being that person who, who can’t, who can’t do that. I don’t like, I don’t like change; it’s, it’s just ‘cause like I have a shitty childhood so I don’t like change. So yeah, I spent five, almost five months on that range. Yeah, I didn’t want to get up and pack up all my things and go to the next place not knowing where I was going, and be put on a floor beside a toilet and be with people that I don’t know. So no, I didn’t do that.
80Mr. Fournier’s own testimony reveals he had a safe avenue of escape. He made a choice. To the extent that he, on other occasions during his testimony, asserts he had no safe way around trafficking, I reject it. It does not alone or with any other evidence – or absence of evidence – leave me in doubt.
81Moreover, I find based upon all the evidence I do accept that the Crown has proven beyond a reasonable doubt that Mr. Fournier had a safe means of escape.
82On at least two independent bases, I find the defence of duress disproven and do not need to consider the other elements.
83Consequently, with this defence disproven, I find on the basis of all the evidence that the Crown has proven that Mr. Fournier did unlawfully traffic in fentanyl mixed with carfentanil and find him guilty of that count.
84Having found beyond a reasonable doubt that Mr. Fournier did traffic in this controlled substance, I must now go on to consider whether Mr. Fournier is criminally liable for Mr. Sidhu's death as a result.
Unlawful Act Manslaughter
85It is the crown theory that by delivering the fentanyl mix to Mr. Sidhu who then ingested it, Mr. Fournier is guilty of unlawful act manslaughter. Mr. Sidhu fatally over-dosed because of the toxic effect of this drug as a result. In committing the unlawful act of trafficking in a notoriously dangerous and deadly drug-- in distributing a dose of this drug for Mr. Sidhu to ingest--he caused Mr. Sidhu's death. “But for” Mr. Fournier's act in giving him this drug, Mr. Sidhu would not have died. His provision of the drug to Mr. Sidhu was a contributing cause of Mr. Sidhu's death.
86Mr. Fournier testified and does not dispute that he provided this drug to Mr. Sidhu. While he disputes that he knew it was mixed with carfentanil, he takes no issue with the fact that this drug can be lethal and that he was cautioned of its strength by the person who gave it to him. Objectively Mr. Fournier had no way of knowing how much can be safely administered. Any street drug of unknown origin, particularly one known to contain fentanyl is inherently dangerous. As such, Mr. Fournier takes no issue with the fact that trafficking in fentanyl to Mr. Sidhu was objectively dangerous, that the risk of bodily harm was neither trivial nor transitory and was objectively foreseeable in the circumstances. Of this Mr. Fournier takes no issue; rather the key issue on this count is whether the crown has proved the element of causation beyond a reasonable doubt
87Mr. Fournier argues that that the Crown has failed to prove factual causation or legal causation. More particularly, he argues that the following intervening acts independently or together broke the chain of causation, and he should therefore be found not guilty of manslaughter:
- That Mr. Sidhu purposely consumed the drug as a manner of suicide -- a fact for which there is no direct evidence but which I am asked to infer based upon his history of depression and suicidal ideation;
- The failure of the correctional authorities in allowing the distribution of drugs to go on and their failure to act in a timely way after the fact;
- That Mr. Sidhu received an additional amount of this drug -- a fact for which there is no direct evidence but which I am asked to infer;
- That Mr. Sidhu -- a known opioid addict - voluntarily consumed this drug - this fact is uncontroverted
88Further Mr. McRae argues that Mr. Fournier should not be held responsible in law for the death that occurred. He is morally innocent. Even if his actions were a contributing cause factually several other events played a part in Mr. Sidhu's death. Even without Mr. Fournier's actions, he argues, Mr. Sidhu would have eventually been given the fentanyl mix from someone else; hence even without Mr. Fournier's actions, the same result would have occurred.
89Was Mr. Fournier's actions in delivering and providing the fentanyl-mix to Mr. Sidhu “a significant contributing cause” of his death? If so, is this a case where legally the acts of Mr. Fournier should not be imputed as a significant contributing cause because of an intervening event or some other reason?
90The test for causation in manslaughter has been expressed as: whether the accused’s actions were ‘a contributing cause of death, outside the de minimis range’: see R. v. Smithers, [1978] 1 S.C.R. 506; or as a ‘significant contributing cause’ or ‘substantial cause’: See R. v. Nette, 2001 SCC 78. As explained in Nette, causation has two components--factual causation and legal causation.
91Factual causation is an inquiry about how the victim came to his or her death, in a medical, mechanical, or physical sense, and with the contribution of the accused to that result: Nette. As the Court explained in R. v. Maybin, 2012 SCC 24, factual causation is not limited to the direct and immediate cause, nor is it limited to the most significant cause. In any given case, the trier of fact will have to make an assessment of the medical cause of death, and consider the contribution of the accused to that result, usually by asking whether the deceased would have died "but for" the actions of the accused.
92Legal causation is directed at the question of whether the accused person should be held criminally responsible for the consequences that occurred. It is based on the concept of moral responsibility. It is not a mechanical or mathematical exercise. The focus is on whether the accused should be held legally responsible for the consequences or whether holding the accused responsible would amount to punishing the morally innocent. However, a distinct two-step inquiry into factual and legal causation is not required: See Nette at para 44-46 and Maybin at para 20-21 and R. v. Haas, 2016 MBCA 42.
93Whether another event is an intervening act is part of the analysis as to whether legal causation has been established. Other causes may intervene to break the chain of causation between the accused's acts and the death. An intervening cause is where a new event results in the accused's actions not being a significant contributing cause of death.
Legal Causation Applied
94Given all the circumstances, I am sure that factually, Mr. Fournier's unlawful act caused Mr. Sidhu's death.
95To situate the causation issue, it is worth detailing the timeline of events, starting from the moment Mr. Fournier obtained the drugs while the inmates on the range were still locked in their cells over the dinner period.
96Shortly before 5pm, Henderson from cell 7 yells at Mr. Prosper, an inmate in cell 5 who he believed had drugs and was not sharing and threatened they would beat him up later if he did not. Mr. Fournier, being the server, went to cell 5 to speak to this inmate. Mr. Fournier received a package of the fentanyl mix. They were warned by this inmate in cell 5 that it was strong and to be careful. Mr. Fournier then brought the drugs to Henderson in cell 5. He spent some time outside cell 5. CCTV footage shows Mr. Fournier and another inmate displaying signs of excitement.
97At 5:14pm, Mr. Fournier left Mr. Henderson's cell with a portion of the drugs to share. He took a purple card that was offered to him from someone in cell 8 -- that is the deceased, Mr. Sidhu's cell.
98Mr. Fournier then sat down at the table opposite Mr. Sidhu's cell and divided lines up on the purple card.
99The backdrop of the purple card obscured the presence of the drug. From the CCTV footage filed, the purple card, but not the drug is observable.
100The carfentinal-fentanyl mix was purple.
101At 5:17pm, after dividing the lines, Mr. Fournier went to cell 7, Henderson's cell. Immediately after, still at 5:17pm, Mr. Fournier went to the deceased, Mr. Sidhu's cell--cell 8-- where he held up the purple card to the bars and used a playing card in his other hand to scrape on top of the purple card toward cell 8. I find that Mr. Sidhu, the deceased snorted the fentanyl/carfentinal mix at this time. Mr. Fournier admitted this in his evidence.
102At 5:18pm, Mr. Fournier went to cell 11 and did the same thing. CCTV footage shows inmates, Mr. Bricker and Mr. St. Pierre sniffing off the purple card held by Mr. Fournier. Mr. Fournier admitted this in his evidence.
103Shortly after, Mr. Fournier presented the card to another inmate who was exceptionally out of his cell because of a plumbing issue and was returning from the shower. That inmate bent his head down consistent with snorting off the card.
104At 5:20pm, Mr. Fournier returned to the front of cell 7, Mr. Henderson's cell and snorted a line himself off the card.
105At 5:21, Mr. Fournier returned to the table opposite cell 8. There, Duke -- the other server on the range and Mr. Fournier's cell-mate, put his head down in a manner that was consistent with snorting the drug.
106Immediately after, at 5:22, Mr. Fournier went to cell 12 with the purple card and playing card. He admitted in his evidence that an inmate in that cell also snorted a line off the card.
107At 5:23pm, Mr. Fournier returns to cell 11, Mr. St. Pierre's cell and hands the purple card to an inmate inside.
1085:30pm is the scheduled after dinner lock out. This is when correctional officers attend and walk down the wing, unlocking each cell one by one. As each door opens the inmates are expected to walk out on the range and stand or sit near the wall opposite the cell doors in this narrow range as the correctional officers lock up the cells. The inmates have free time out on the range until they are locked back inside their cells for the night.
109It was during this process, when the staff started to become aware of the signs of drug use and when some of the inmates appeared to overdose.
110Correctional officer Ball attended to unlock Cells 1 to 13 in order. As the inmates lined up outside, the officers then proceed to relock the cells in reverse order.
111Nothing was out of ordinary until this relock. Correctional officer Ball began locking the cells in descending order, starting from Cell 13.
112The inmates from cell 11 had not come out.
113His cellmates then exited, but Mr. St. Pierre did not come out normally. He would take a few steps then stop and hang on to the bar doors. He repeated this a couple of times. He was stuck. Ball called for help and St Pierre was taken out of the cell by staff for medical attention. He could not walk on his own. By this point his eyes were rolled back towards the top of his head. He was escorted out of the wing at 5:32pm.
114Staff continued back to the start of the wing, locking all the doors. The rest of the inmates as expected had exited and gathered near the wall opposite the cells during the lock out procedure.
115By this point the deceased, Mr. Sidhu sat at the table opposite his cell. Several inmates were around him. They noticed he was in trouble. He was becoming unresponsive. They tried to get him to sip water. He was slapped. By 5:37pm Mr. Sidhu was out of it --never returning to his senses. This is 20 minutes after Mr. Fournier gave him a line off the purple card and he snorted it, Mr. Sidhu sat with his head back and eyes rolled back at the table.
116At 5:40pm, Mr. Kazi, one of Mr. Sidhu's cellmates asked Mr. Fournier's permission to tell a guard what was really going on -- so he could get help for Mr. Sidhu.
117It was too late.
118Guards and nursing staff brought him down from the table on to the floor and performed CPR and administered several doses of naloxone—a drug if administered fast enough can reverse the effects of an opioid.
119Other inmates were locked back into the cells.
120Tragically, they were unsuccessful in resuscitating Mr. Sidhu. Mr. Sidhu died on the floor of the range outside his cell. He was officially pronounced deceased later at the hospital.
121The cause of death was the combined toxic effects of carfentanil and fentanyl.
122All told, including the deceased Mr. Sidhu, six inmates from I-wing were taken to Milton District hospital all of whom were exhibiting symptoms of drug use or overdose during this same time period during the lock out process: Mr. Sidhu, Mr. St. Pierre, Mr. Lush (Henderson's cellmate), Mr. Duke, Mr. Fournier and Mr. Khan -- an inmate in cell 3.
123Three of them, including St. Pierre were administered naloxone and revived from their state of unconsciousness or state of losing consciousness.
124Mr. Fournier testified that when he was first called over by cell 5 and given the drug, he was told by Mr. Prosper that he had something for him --as in Fournier and his friend - meaning Henderson. He was told to be careful it was fire. He assumed it was fentanyl.
125Mr. Fournier also testified that he told the inmates who he gave the drug to that 'you can only do more, you can't do less' and also told them that if anything were to happen he did not want the situation that happened -- meaning the overdoses - to happen and that they can tell the guards right away so we can get help.
126Both fentanyl and carfentanil are dangerous drugs. A small amount of carfentanil can produce a severe toxic effect.
127The same amount of fentanyl or carfentanil can have varying effects on an individual. What is lethal to one person will not be lethal to another. It depends on a number of factors including tolerance. Ms. Cara Shepherd a forensic toxicologist with CFS testified that tolerance is developed through repeated administration of the drug over a period of time. It is influenced by how often the individual is using the drug, how much they are using, as well as individual factors. If someone who had tolerance to opioids but then had no access or limited access over a period of months, such as in the case when someone is in custody their tolerance would decrease. It is difficult to predict.
128Fentanyl and carfentanil are both synthetic opioids. While fentanyl can be prescribed for the treatment of severe pain, carfentanil has no approved medical use in humans. It can be used in veterinary medicine as a tranquilizer for large animals.
129Fentanyl and carfentanil can produce euphoria, depending upon the dose that is being administered. It also can produce central nervous system depression creating varying degrees of reduced consciousness, ranging from sedation to drowsiness, such as stupor, to actual unconsciousness depending upon the dose and the individual’s tolerance. It can also slow down a person’s breathing, causing respiratory depression and slow and shallow breathing.
130Fentanyl is 100 times more potent than morphine. Carfentanil is 100 times more potent than fentanyl and 10,000 times more potent than morphine.
131If combined, they produce a more pronounced effect.
132Given the toxicology evidence, the cause of death and the time line and circumstances I have just outlined, as indicated, I have no difficulty finding beyond a reasonable doubt the factual causation component -- that is Mr. Fournier factually caused Mr. Sidhu's death when he gave him a line of fentanyl which he ingested.
133But for Mr. Fournier’s actions in delivering this dangerous substance on the purple card for Mr. Sidhu to snort, he would not have died. The submission that Mr. Sidhu would have gotten the drug without Mr. Fournier at some point, ingested it and died anyway is speculative and does not detract from this finding.
134The question is, was there an intervening act breaking the chain of causation? Should the cause of Mr. Sidhu's death, legally, be imputed on Mr. Fournier?
(i) was Mr. Sidhu's death an act of suicide and hence not a homicide?
135Mr. McRae argues that I should be at minimum left in a state of doubt about whether Mr. Sidhu intentionally killed himself. If so this would break the chain of causation. There would be no homicide; moreover, Mr. Fournier in such circumstances, would be morally innocent of Mr. Sidhu's death, tragic as it is.
136In support of his position, Mr. McRae points to the fact that Mr. Sidhu was a known heroin user and addict, and had history of depression and past instances of suicidal ideation from years prior. He noted that his medical records indicated a possible past suicide attempt in 2017.
137I do not accept this submission.
138There is no evidence that Mr. Sidhu was suicidal on May 7, 2019. The evidence in fact shows the contrary.
139A treating staff psychiatrist at Maplehurst had no concerns that Mr. Sidhu was suicidal based upon his own dealings with Mr. Sidhu and the institution’s records. He testified at the trial and explained why he concludes this. His evidence was uncontradicted.
140Moreover, inmates testified about Mr. Sidhu’s state of mind the day that he died. Mr. Kazi, Mr. Sidhu's cellmate testified that on the day in question Mr. Sidhu was excited to do the drugs.
141I find, he was not suicidal -- rather, he took the drugs recreationally to get high just as the rest of the inmates who Mr. Fournier gave the drug to did.
142He is an addict.
143Being an addict does not mean he is able to determine what a safe dose is and how to get high without fatally overdosing. Overdoses, sadly, are not uncommon among users of fentanyl. Drug addicts do overdose without intending to or without intending to die.
144Moreover, addict or not, Mr. Sidhu would have no way of knowing -- as no one would -- the safe amount to take of a carfentanil-fentanyl mixture -- assuming he knew it was mixed with carfentanil. He would have no waying of knowing what a fatal dose of fentanyl is as argued by the defence on account of his opioid experience. The evidence is he was a heroin user, which is a different opioid.
(ii) Did the lack of proper response or care by Maplehurst in either preventing the trafficking of drugs or in response in treating Mr. Sidhu break the chain?
145Mr. McRae submits that intervening acts both before and after an unlawful act can break the chain of causation. He argues that if the guards were properly paying attention they would have seen what is clear from the CCTV footage -- that drugs were on the range and being shared. Given everything that was occurring on this range in the preceding days the guards either knew about drugs and turned a blind eye or should have known.
146Additionally, the defence submits that as soon as the guards discovered the condition Mr. St. Pierre was in at lock out, there should have been a swifter response to check on all the inmates on the range. Had they done so, Mr. Sidhu may have been saved, noting the other inmates who overdosed were resuscitated or revived.
147Whatever may be said about the adequacy in the level of the institution’s response in preventing trafficking or addressing overdoses, it does not break the chain of causation.
148Mr. Fournier gave Mr. Sidhu a dose of this drug -- a dose from a line he divided and walked over to Mr. Sidhu's cell. Mr. Sidhu sniffed the drug off the card as Mr. Fournier held it. Mr. Sidhu then died due to the toxic effects of this drug. Within 20 minutes he was unresponsive. With 25 minutes CPR was being performed on him. Naxolone was given to him to no effect.
149Assuming the staff at Maplehurst could have done better in a more timely and effective response to save Mr. Sidhu or stopped the trafficking and prevented the overdose in the first place, Mr. Fournier's actions are still a significant contributing cause of Mr. Sidhu's death.
(iii) Did Mr. Sidhu get another line of this fentanyl/carfentanil mix, thus breaking the chain of causation?
150I question whether getting more of this same drug that was trafficked by Mr. Fournier from another person on the range in the circumstances of this case would amount to breaking the chain of causation. However, assuming it would, I find there was no second line given or additional drug taken. Mr. McRae submitted that there was opportunity for Mr. Sidhu to get another line directly from Mr. Mr. Henderson (who kept a portion of the drug) or from one of the other inmates who were out on the range at the time. From the CCTV footage, an arm from cell 8 can be seen reaching into cell 7 (Henderson’s cell). This is about a minute after Mr. Sidhu snorted the line off the purple card. There is nothing visible in that hand as the person withdraws it, at least as can be seen from the CCTV footage. Nonetheless, it is no more than conjecture that Mr. Sidhu consumed more of the drug than what Mr. Fournier gave him. There is no direct evidence that Mr. Sidhu was given more of the drug than what Mr. Fournier provided him. The suggestion that there was a second line is speculation and inconsistent with the evidence that I accept. Mr. Kazi, Mr. Sidhu's cell mate was questioned about whether he took the drug a second time. Mr. Kazi testified that physically Mr. Sidhu was fine then he took the drugs and the effect was nearly instant. He saw Mr. Fournier deliver it on the purple card. Although he expressed uncertainly about whether he consumed it off the card at the bars or on his desk after Mr. Fournier walked away, when questioned on cross-examination about the possibility of a second line, he in the end maintained that he believed it was just once that Mr. Sidhu got the drug.
151While inside the cell, before the lock-out Mr. Kazi was concerned about his condition. He noticed Mr. Sidhu's perception and bodily functions start slowing down. Basic tasks took him longer, from putting on a shirt, getting dressed, standing up. He was concerned the drug was too strong for him. He testified that inside the cell he was not out of it yet, but bodily function-wise, he was having difficulty breathing and talking. Then upon exiting the cell, Mr. Kazi testified they sat him down and Mr. Sidhu just started clenching his jaw and rolling his eyes back. He said it was going downhill from the moment they came out of the cell.
152Mr. Kazi was concerned about Mr. Sidhu and although he was trying to stay away from what was happening, he was watching him carefully. He would have noticed a second independent administration of a drug given the drastic and immediate effects he noticed it had on his cellmate. Importantly, Mr. Kazi saw him take the drug and noticed a significant and immediate effect that progressed fast. Immediately before he saw Mr. Sidhu ingest the drugs, he said he was fine.
153I find that there was no second line or other drug breaking the chain of causation.
(iv) Did Mr. Sidhu's voluntary consumption break the chain of causation?
154The defence advances the position that the law is unsettled as to whether or not the voluntary consumption by an experienced adult who is given a dangerous substance breaks the chain of causation.
155Mr. McRae cites Justice Zabel's decision in R. v. Jackson, 2014 ONCJ 386 who followed the House of Lords approach as set out in R v Kennedy (No 2), [2007] UKHL 38, [2008] 1 AC 269 and found that in the case before him the voluntary act of an adult in ingesting a lethal dosage of an illegal drug severed the link between the accused's trafficking and the user's death. Justice Zabel, however, did not have the benefit of the Manitoba Court of Appeal decision delivered years later in R. v. Haas, 2016 MBCA 42 which considered the Canadian jurisprudence on this very issue and determined:
61 To conclude, Kennedy is not consistent with the development of Canadian jurisprudence. The key issue in determining whether the unlawful act in question is objectively dangerous is the risk of harm, and not, as concluded in Kennedy, whether the actual harm flowed immediately from the unlawful act. The Supreme Court of Canada has directed that the determination of causation is to focus on the accused person's moral responsibility, as opposed to the autonomy of the victim and the victim's choices, as in Kennedy. Furthermore, the House of Lord's rejection of the reasonable foreseeability approach is contrary to Maybin, which accepted the use of such an approach as an analytical aid when determining whether or not an intervening act has severed the chain of causation.
62 Whether a deceased's voluntary consumption of drugs constitutes an intervening act will depend upon the facts and circumstances found by the trial judge, and the trial judge's assessment of those facts and circumstances in light of the legal principles regarding causation. In other words, voluntary consumption is simply one of many contextual considerations in the circumstances of any given case to determine whether or not the chain of causation has been broken.
156Leave by Mr. Haas to appeal to the Supreme Court was denied: [2016] S.C.C.A. No. 306.
157Moreover, the facts are different here than those before Justice Zabel in Jackson. He made specific findings that the dosage of heroin injected by the accused Sarah Jackson did not cause death, but that the deceased injected himself several hours later and that is what caused the death.
158Unlike the accused in Jackson, in my view, Mr. Sidhu's voluntary consumption of the fentanyl-mix did not break the chain of causation. In reaching this conclusion, I take into account the temporal connection between the trafficking and the consumption of the drug. Mr. Sidhu consumed the drug immediately as it was trafficked to him and while Mr. Fournier held it for him to sniff -- akin to an administering scenario. I also take into account the fact that Mr. Fournier determined how much of this drug to give. While I accept that Mr. Fournier sought some direction from Mr. Henderson and perhaps others who may have had more experience with fentanyl, the fact is moments before he provided this drug to Mr. Sidhu, Mr. Fournier sat down on a table across form Mr. Sidhu's cell and split up the drug into lines or doses for inmates, including Mr. Sidhu, to consume. The fact that Mr. Fournier consulted others or was given direction on the amount to give out as a dose, with all the other evidence concerning the warnings about how strong this fentanyl was and Mr. Fournier's own experiences in witnessing fentanyl overdoses, reinforces Mr. Fournier’s moral culpability. Not just objectively, but subjectively he knew he was giving out a dangerous substance that could give rise to bodily harm by someone who consumed it. Mr. Fournier held the drug out while Mr. Sidhu consumed it. Mr. Sidhu’s consumption of this dangerous drug was not remote and was patently foreseeable—as was the risk of bodily harm in consuming it.
159I also find no merit in Mr. McRae's related argument that Mr. Sidhu would have gotten the drug eventually and consumed even if Mr. Fournier did not give it to him and hence Mr. Fournier's actions are not a significant cause. A potential future act which did not occur cannot amount to an an intervening act which severs the chain of causation. Regardless, in my view, it is purely speculative to say that Mr. Sidhu would have eventually gotten the drug from someone else.
160The fact is Mr. Fournier gave it to him. Not someone else. Mr. Sidhu immediately consumed it and shortly later overdosed and died.
161In conclusion, I find that the Crown has proven factual and legal causation beyond a reasonable doubt. Mr. Fournier's act, when he trafficked a dangerous drug to Mr. Sidhu contributed significantly to his death. This is the only reasonable inference that the evidence permits. I have considered other possible theories, including those specifically raised by the defence that are inconsistent with guilt which arise from the evidence or lack of evidence and have for the reasons given, rejected then.
162Consequently, I find that the Crown has proven the elements of manslaughter to the beyond a reasonable doubt standard.
163This is not to say that Mr. Fournier was uncaring or indifferent to Mr. Sidhu’s death. He did not intend for this tragedy to happen. I also accept that having to live in this environment, Mr. Fournier has undoubtedly had to make difficult choices. The conditions are unacceptably harsh. It is true that many societal and institutional factors contribute to the circumstances that make incidents like the one on May 7, 2019 possible. Nonetheless, the Crown has proven each of the elements of the two offences as the law has defined them.
Conclusion
164On count 1, I find Mr. Fournier guilty of manslaughter.
165On count 3, I find Mr. Fournier guilty of trafficking in the fentanyl-carfentanil mix.
166Count 2 was withdrawn by the Crown prior to arraignment.
Released: June 30, 2022 Signed: Justice A.M. Calsavara
