Court of Appeal for Ontario

Date: 20230619 Docket: COA-22-CR-0365

van Rensburg, Benotto and Copeland JJ.A.

Between:

His Majesty the King Respondent

and

Michael Fournier Appellant

Counsel:

Michael Fournier, acting in person Naomi Lutes, appearing as duty counsel Jeffrey Wyngaarden, for the respondent

Heard: June 5, 2023

On appeal from the conviction entered on June 30, 2022 by Justice Ann-Marie Calsavara of the Ontario Court of Justice, with reasons reported at 2022 ONCJ 296.

Reasons for Decision

[1] The appellant was convicted of trafficking in a powerful and potentially dangerous mixture of fentanyl-carfentinil and manslaughter in connection with the overdose death of a fellow inmate. He was sentenced to 1350 days’ imprisonment for manslaughter and 912 days concurrent for trafficking (a net sentence of 571 days after credit for pre-sentence custody), plus two years’ probation. He appeals his conviction.

[2] The offences occurred while the appellant was incarcerated and was a “server” for his wing or range, assigned by corrections staff to deliver meals and other items to fellow inmates. The trial judge accepted that, according to a code of inmate rules, the server would distribute anything the men in the wing wanted to share while locked in their cells, including drugs.

[3] The appellant testified that he had obtained drugs from another inmate, Mr. Prosper. This occurred after Mr. Henderson, the most powerful inmate on the unit, had learned that Mr. Prosper had drugs that were not being shared with the other inmates, threatened Mr. Prosper with assault if he did not share his drugs, and later told the appellant to obtain and distribute the drugs, given his position as a server. The appellant obtained and divided up the drugs into lines for select inmates and went cell-to-cell holding up a card for the inmates to do lines. The appellant also consumed a share of the drugs. A short while later, several inmates began showing signs of overdose, and one inmate, Mr. Sidhu, became unresponsive and soon after died from an overdose.

[4] In convicting the appellant of trafficking, the trial judge rejected the claim that he was simply an aide to Mr. Henderson or Mr. Prosper or a mere possessor of the drugs. She found that his role in dividing up and delivering the drugs met the definition of trafficking. Once the appellant took the drug mixture, divided it and delivered it from person to person, the offence was complete. The trial judge also rejected the appellant’s claim that he had acted under duress, whether because of an implied threat from Mr. Henderson’s explicit threat to Mr. Prosper, or because of a generalized fear of assault by other powerful inmates at the facility if he were to breach the inmates’ unwritten code. She found the appellant had acted “willingly and eagerly” in distributing the drugs, and not out of an implied threat from Mr. Henderson or others. Nor did he meet the “no safe avenue of escape” requirement for duress: at paras. 50, 59.

[5] On the manslaughter charge the key issue was whether the appellant’s unlawful act of trafficking was a significant contributing cause of the victim’s death. The trial judge concluded that the Crown had proven both factual causation and legal causation. She rejected, at para. 87, the appellant’s argument that the chain of causation was broken by various intervening acts independently or together, in particular: an act of suicide by the victim, a lack of proper response by prison staff, the victim’s ingestion of other drugs, and the victim’s voluntary consumption of the drugs.

[6] On appeal the appellant makes two arguments. First, he asserts that the trial judge erred in her approach to the defence of duress, both in relation to her assessment of the appellant’s safe avenue of escape and the causal link between his actions and the threat. He asserts that the trial judge failed to properly account for the prison context and the implicit nature of the threats under which the appellant was operating when she assessed the defence of duress. In particular, he says the trial judge overemphasized the explicit threats by Mr. Henderson, and, in identifying certain safe avenues of escape for the appellant, she did not consider that the threats would have followed the appellant, even if he availed himself of these avenues.

[7] We disagree. The defence of duress was properly rejected by the trial judge on the evidence that she recited in her reasons, and she did not import a “sole reason requirement” contrary to the principles set out in the leading Supreme Court decision of R. v. Ryan, 2013 SCC 3, [2013] 1 S.C.R. 14. She did not focus only on the alleged threat by Mr. Henderson. Rather, she acknowledged that the appellant was alleging a more generalized fear of violence by other inmates if he did not follow the inmate rules. She was satisfied beyond a reasonable doubt however that the appellant distributed the drugs because the thrust of his testimony was that he embraced his role as a server on the range, that he was excited to obtain and to share the drugs, and that he wanted to party with his friends. This was sufficient for the Crown to disprove duress.

[8] Further, the trial judge’s alternative basis for rejecting the defence of duress, that the Crown had established beyond a reasonable doubt that the appellant had a safe avenue of escape, was supported by the appellant’s own evidence of his conduct on other occasions. This went directly to the proportionality of the threat to the unlawful act, that is, the trafficking of the drugs, and the reasonableness of the appellant’s actions. Contrary to the appellant’s argument, the trial judge did not ignore his evidence that he would have faced violent consequences if he had told the jail guards about the threat or if he had not distributed the drugs. Nor did she make speculative findings about the availability of a safe avenue of escape. Rather, she referred to the appellant’s own evidence that, on a subsequent occasion, he was able to leave the range after a threat of violence, and that he did not want to leave the range he had been on for five years, which would have meant giving up the advantages of being a server, including sharing a cell with only one, and not two, other inmates.

[9] The second ground of appeal focuses on the element of legal causation for manslaughter. The appellant asserts that the trial judge erred in rejecting the argument that Mr. Sidhu’s voluntary consumption of the drug interrupted the chain of legal causation. The appellant contends that, while the trial judge identified the correct legal principles for determining factual and legal causation, in concluding that causation was made out, she over-emphasized the temporal connection between the trafficking and the consumption of the drug, and she treated the foreseeability of Mr. Sidhu’s death as dispositive.

[10] Again, we disagree. The trial judge was satisfied beyond a reasonable doubt that the trafficking was the factual, or “but for”, cause of Mr. Sidhu’s death, who, like other inmates, showed signs of overdose shortly after he received the drugs from the appellant. As for legal causation, the trial judge noted that determining whether the appellant should be held criminally responsible for these consequences engaged questions of his moral responsibility. She cited the decision of the Manitoba Court of Appeal in R. v. Haas, 2016 MBCA 42, leave to appeal refused, [2016] S.C.C.A. No. 306, which in turn relied on the Supreme Court’s decision in R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30. In Maybin Karakatsanis J. identified the ultimate question as whether “the dangerous, unlawful acts of the accused [were] a significant contributing cause of the victim's death”: at para. 28. She stated at para. 29:

Depending on the circumstances, assessments of foreseeability or independence may be more or less helpful in determining whether an accused's unlawful acts were still a significant contributing cause at the time of death. Any assessment of legal causation should maintain focus on whether the accused should be held legally responsible for the consequences of his actions, or whether holding the accused responsible for the death would amount to punishing a moral innocent. [Emphasis in original.]

[11] As the trial judge noted at para. 86, the appellant took no issue with the fact that trafficking in fentanyl to Mr. Sidhu was objectively dangerous and that the risk of bodily harm was objectively foreseeable: the appellant had no way of knowing how much of the drug, which was of unknown origin and known to contain fentanyl, could be safely administered. In finding that legal causation was made out, and that Mr. Sidhu’s voluntary consumption of the drug did not break the chain of causation, the trial judge referred not only to the temporal connection between the trafficking and the consumption of the drugs, which was an important factor, but also to the fact that the appellant determined how much of the drug mixture to give the other inmates, that he had split up the drugs into lines or doses for the inmates to consume, that he assumed he was distributing fentanyl, and that he had been warned that the drugs were strong and to be careful: at para. 158.

[12] We see no error in the trial judge’s conclusion that legal causation was made out and that the appellant was accordingly guilty of manslaughter.

[13] For these reasons the appeal is dismissed.

“K. van Rensburg J.A.”

“M.L. Benotto J.A.”

“J. Copeland J.A.”