Ontario Court of Justice

Date: November 10, 2022 Court File No.: Simcoe 22-98

Between: HIS MAJESTY THE KING — AND — Derrick Adams

Before: Justice A.D. Hilliard

Heard on: August 4, 16, 18 September 13, 20, 22 October 6, 2022 Reasons for Judgment released on: November 10, 2022

Counsel: J. Pereira / G. Romano, for the Crown J. Stephenson, for the defendant

Hilliard J.:

Overview

[1] Derrick Adams is charged with trafficking fentanyl, manslaughter, and criminal negligence causing death. The charges arise out of Derrick’s alleged involvement in the overdose death of Rachel Cook.

[2] Much of the evidence about the events of the day of Rachel’s death are not in dispute. The issues for me to determine are:

(1) Has the Crown proven beyond a reasonable doubt that Derrick trafficked fentanyl to Rachel on August 27, 2021? (2) Is the act of trafficking fentanyl sufficient to support a finding of guilt on a charge of manslaughter? (3) Is the act of trafficking fentanyl sufficient to support a finding of guilt on a charge of criminal negligence causing death?

Undisputed Facts

[3] Rachel Cook died on August 27, 2021. Rachel was 17 years old.

[4] On August 27, 2021, Rachel was living with her mother’s friend, Tanya Gettinby, in the town of Simcoe. Rachel had a room in the apartment rented by Tanya and Tanya’s partner, Glen Bertling. Tanya was Rachel’s de facto guardian.

[5] Tanya had taken Rachel into her home in an attempt to help Rachel get her life back on track and get off drugs. Rachel had been working part-time at Tim Horton’s until the day before her death. However, she had also been regularly using illicit substances, including but not limited to fentanyl.

[6] The morning of August 27, 2021, Rachel met up with Derrick Adams. Together Rachel and Derrick went to the residence of Holly Cook, Rachel’s mother. While at Holly’s residence, Rachel and Derrick went down into the basement. Holly did not go with them, but rather stayed upstairs. Rachel and Derrick were in the basement for approximately fifteen (15) to twenty (20) minutes. When they came back upstairs Rachel avoided her mother, Holly, and left the residence without saying goodbye.

[7] In the early afternoon of August 27, 2021, text messages were exchanged between Rachel’s cell phone and a cell phone registered in the name of Derrick Adams. The text messages extracted from the cell phone seized from Derrick upon his arrest and Rachel’s cell phone were admitted into evidence. However, Derrick did not acknowledge that he sent or received any of the messages entered into evidence.

[8] At around 5:00 p.m. in the afternoon of August 27, 2021, Rachel returned home. Tanya invited Rachel to go with her to the Liquidation Centre, a retail store within walking distance of their apartment. Rachel and Tanya were captured on video surveillance walking into the Liquidation Centre at approximately 5:10 p.m.

[9] After going to the Liquidation Centre with Tanya, Rachel goes to meet up with Derrick. Tanya returns home. Tanya and Rachel part ways at approximately 5:15 p.m.

[10] At approximately 5:30 p.m. Tanya gets a text message from Rachel asking her to open the front door because Rachel forgot her house keys. Tanya goes downstairs to let Rachel in and they go back up to the apartment together. After getting home, Rachel sat with Tanya and Glen for a few minutes on the porch where Rachel smoked cannabis while Tanya and Glen smoked cigarettes. Rachel then went into her room and closed the door. Rachel told Tanya and Glen that she was going to have a nap.

[11] At approximately 8:00 p.m. Tanya went to Rachel’s room to give Rachel her night medications. Tanya knocked on the door but there was no answer. When Tanya entered the room she found Rachel unconscious and unresponsive on her bed. Tanya told Glen to call 911. While waiting for the paramedics to arrive, Tanya performed chest compressions, but Rachel did not regain consciousness. The paramedics arrived and continued to attempt to revive Rachel without success. Rachel was then transported by ambulance to the Norfolk General Hospital.

[12] Although Rachel’s heart was restarted at the Norfolk General Hospital, it was determined that there was no brain activity. Rachel was ultimately taken off all life support and died. Dr. Milroy, a pathologist, determined that the cause of death was a fentanyl overdose.

[13] Police attended at the apartment after Rachel was taken to the hospital. A search of Rachel’s room revealed the following items:

• Pills on the dresser – half blue pill marked OXY, pink pills, and orange pill marked 016
• dime bag with residue of fentanyl and methamphetamine
• dime bag with tin foil containing residue of cocaine and fentanyl
• burnt piece of tin foil
• Samsung cell phone
• Pink purse
• Red and black lighter
• Dime bag with residue of fentanyl and caffeine
• Pen casing with filter containing traces of cocaine, fentanyl, methamphetamine, gabapentin, and caffeine

Analysis

Trafficking

[14] Trafficking fentanyl, a controlled substance, is an offence under the Controlled Drugs and Substances Act:

5(1) No person shall traffic in a substance included in Schedule I, II, III, IV or V or in any substance represented or held out by that person to be such a substance.

[15] The Saskatchewan Court of Appeal has recently reaffirmed that trafficking includes sharing drugs with other persons, including for social purposes, regardless of whether the person sharing receives any compensation. [1] The Crown does not have to demonstrate that Derrick received payment from Rachel in order for trafficking to be made out. [2]

[16] The case against Derrick is entirely circumstantial. There is no direct evidence that Derrick trafficked fentanyl to Rachel on August 27, 2021.

[17] The Supreme Court of Canada set out the test for assessing a case based entirely on circumstantial evidence in R. v. Villaroman:

When assessing circumstantial evidence, the trier of fact should consider "other plausible [page1020] theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt: R. v. Comba, [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff'd , [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": R. v. Bagshaw, [1972] S.C.R. 2, at p. 8. "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

Of course, the line between a "plausible theory" and "speculation" is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty. [3]

[18] The Court of Appeal reiterated the Villaroman test in the recent decision R. v. Khalid, [2022] OJ. No. 2974, confirming that each piece of evidence is not to be considered in isolation: “[t]he question, according to Villaroman, is not whether each piece of circumstantial evidence gives rise to a reasonable inference other than guilt, but whether the circumstantial evidence as a whole is consistent only with guilt.” [4]

[19] The following text message exchange between Derrick’s phone and Rachel’s phone on August 27, 2021 is informative:

• [1:44 p.m.] “I’m heading over to Mike and Scarlets so if u need let me know”
• [1:47 p.m.] “Yes I need”
• [1:48 p.m.] “I’m going there now I am going to Tommy’s variety and then walking down there u want to meet me”
• [1:49 p.m.] “yeah ill meet you”
• [1:50 p.m.] “Kk”
• [5:01 p.m.] “Sorry, I forgot to message when I got there, but I’m already been in and out and I’m on my way back now”
• [5:03 p.m.] “Okay tiny’s coming with me so im gonna give you 3 dollars she thinks that’s what im meeting you for”
• [5:13 p.m.] “Are you close”
• [5:14 p.m.] “I’m coming up the trail now I had to stop to my fucking phone fucking”
• [5:14 p.m.] “Okay when im done in here ill walk towards you”
• [5:15 p.m.] “I just switched to my fucking other headphones cuz I’ll fucking break my fucking phone the walk towards me I’m”
• [5:18 p.m.] “I thought you were at the liquidation store I’m almost there now so let me know where I’m supposed to meet you closer towards your house your mom’s already messaging me wanting to know where you are you didn’t say bye to her before you left”
• [5:19 p.m.] “Yeah I am just walking out”

[20] The timing of the final text message sent from Rachel’s phone to Derrick’s phone coincides with the video surveillance evidence showing Rachel leaving the Liquidation Centre, parting from Tanya, and meeting up with a male person walking down the street. The fact that Derrick and Rachel do in fact meet up, which was confirmed by Tanya in her testimony and captured on video surveillance, eliminates any reasonable possibility that someone other than Derrick is sending text messages to Rachel arranging to meet.

[21] Although during submissions Derrick argued that he was never identified as the male in the surveillance video, that submission ignores the evidence of Tanya who identified Derrick as the man shown in the Liquidation Centre video surveillance. Tanya’s evidence was that she knew that Rachel was going to meet up with Derek after leaving the Liquidation Centre and Tanya was able to see Rachel and Derrick meet up on the street. The video surveillance was shown to Tanya during her evidence in chief and she confirmed that the video accurately captured what she had witnessed on August 27, 2021 – Derrick and Rachel meeting up at approximately 5:20 p.m. Tanya’s evidence on this point was not challenged in cross-examination.

[22] I therefore find that Derrick having trafficked drugs to Rachel on August 27, 2022 when they met at approximately 5:20 p.m. is a reasonable inference that can be drawn based on the evidence. The issue then becomes, is trafficking the only reasonable inference that can be drawn?

[23] Derrick argued that I cannot find beyond a reasonable doubt that he gave Rachel drugs when they met up in the late afternoon of August 27, 2021 because there is another reasonable inference to be drawn from the text messages. The argument was made that I can infer from the text message “Sorry, I forgot to message when I got there, but I’m already been in and out and I’m on my way back now” is that Derrick was telling Rachel he was unable to obtain any drugs for her.

[24] In my view, that is not a reasonable inference to be drawn on the totality of the evidence. It defies common sense to conclude that Derrick’s text starting with “sorry” is him telling Rachel he was unable to get any drugs for her but they go ahead with the previous plan to meet anyway. In addition, Rachel’s text about what she told Tanya about their reason for meeting does not support an inference that Derrick told her he was unsuccessful in getting her the drugs she was looking for. In her testimony, Tanya confirmed that some people referred to her as “Tiny”, including Rachel. Rachel’s text “Okay tiny’s coming with me so im gonna give you 3 dollars she thinks that’s what im meeting you for” suggests that Rachel is hiding from Tanya the true reason why she is meeting up with Derrick.

[25] If Derrick and Rachel were meeting for a reason other than a drug transaction, Rachel would have no reason to lie to Tanya. Therefore, in looking at the text messages in their totality, I find that it is purely speculative to suggest that Derrick’s text message starting with the word “sorry” could be used to support the alternate inference suggested.

[26] Approximately ten (10) minutes elapsed between the time that Derrick and Rachel meet near the liquidation centre and when Rachel arrives back home. Although there is no evidence about what occurs during those ten (10) minutes, the suggestion that Derrick and Rachel met up with a third individual from whom Rachel purchased drugs, is purely speculative and is not supported by the evidence.

[27] Text messages are sent from Derrick’s phone to an unidentified phone number just after the exchange between Derrick and Rachel around 1:45 p.m.:

• [2:09 p.m.] “I got money need down open door I’m there in 2 mins”
• [2:15 p.m.] “If I r stil around can u pls sell me half p down”

[28] I accept the expert evidence of Detective Constable Auger that “p” in drug parlance generally refers to a point or 0.1 grams and a “half p” would be a half point or 0.05 grams. I also accept his expert evidence that “down” is a term that is used to refer specifically to fentanyl.

[29] The cell phone extracts from Rachel’s phone entered into evidence demonstrate a pattern of seeking out and purchasing small quantities of drugs in the days leading up to her death. It is also relevant that Rachel only ever contacted Derrick in the days prior to her death looking for “down” and on each occasion when Rachel sends a text message to Derrick looking for fentanyl, Derrick’s messages in response refer to going to or being at Mike and Scarlett’s, just as he does on August 27, 2021.

[30] Derrick also advanced an alternative argument that even if I am satisfied that he met up with Rachel and provided her drugs, which he specifically denies, I cannot find beyond a reasonable doubt that the drug Derrick provided to Rachel on August 27, 2021 was fentanyl.

[31] There is no evidence that Rachel ever sought out or obtained from Derrick any drug other than fentanyl, either on August 27, 2021, or any other day. The text messages between Derrick and Rachel about drugs are only about “down” or fentanyl. The drugs and drug residue found in Rachel’s room by the police all contained fentanyl in combination with other controlled substances. Therefore, the suggestion that Derrick may have provided Rachel a drug other than fentanyl when they met up on August 27, 2021 has no basis in the evidence before me and is purely speculative.

[32] In considering the evidence, I am satisfied that it is reasonable to infer the Derrick knew that the substance that he was providing to Rachel on August 27, 2021 was a controlled substance. The text messages extracted from Derrick’s phone confirm that Rachel was asking Derrick for “down” and Derrick then went looking to purchase “down”, which, again, I accept is the word Derrick and Rachel use to mean fentanyl.

[33] There is no evidence to suggest, and no argument was put forth, that Derrick was unaware that the substance he provided to Rachel was fentanyl.

[34] I find that on the totality of the evidence, the only reasonable inference to be drawn is that Rachel met with Derrick at approximately 5:15 p.m. on August 27, 2021 and obtained fentanyl from him. I find any other inferences are purely speculative when the evidence is considered in its totality.

Manslaughter

[35] Having concluded that the only reasonable inference to be drawn is that Derrick did indeed traffic fentanyl to Rachel, I must determine whether the act of trafficking fentanyl can support a conviction for manslaughter.

[36] The following Criminal Code provisions apply to unlawful act manslaughter:

222(1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

(4) Culpable homicide is murder or manslaughter or infanticide.

(5) a person commits culpable homicide when he causes the death of a human being,

(a) by means of an unlawful act,

(b) by criminal negligence,

(c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death, or

(d) by wilfully frightening that human being, in the case of a child or sick person.

234 Culpable homicide that is not murder or infanticide is manslaughter.

[37] The Supreme Court of Canada has recently re-confirmed the elements of unlawful act manslaughter in R. v. Javanmardi, 2019 SCC 54, [2019] SCJ No 54: the actus reus of unlawful act manslaughter under s. 222(5)(a) requires the Crown to prove that the accused committed an unlawful act and that the unlawful act caused death. [5] The fault element is “objective foreseeability of the risk of bodily harm that is neither trivial nor transitory, coupled with the fault element for the predicate offence.” [6]

[38] There is no disputing that trafficking fentanyl, the predicate offence in this case, is an unlawful act. However, Derrick argued that there is insufficient evidence to support a finding that the fentanyl consumed by Rachel on August 27, 2021 is fentanyl that he sold to her. He argues that Rachel may have had a stash of fentanyl obtained from another individual and the fentanyl she purchased from someone else was what caused her death.

[39] I accept the expert evidence of Detective Auger that most fentanyl users purchase drugs in quantities sufficient for immediate consumption, such as a point (0.1 grams) or a half point (0.05 grams). Detective Auger examined Rachel’s text messages and concluded that Rachel engaged in this pattern of purchasing. I accept Detective Auger’s evidence that the text messages support a finding that Rachel was seeking out and purchasing small quantities of fentanyl in the days leading up to her death.

[40] In Rachel’s purse, used dime bags were found, analysis of which confirmed those bags contained traces of fentanyl mixed with other controlled substances. This evidence also supports Detective Auger’s conclusion about Rachel’s pattern of purchasing quantity in small amounts consistent with immediate consumption.

[41] The suggestion that Rachel may have been stocking up on fentanyl is purely speculative and is contradicted by the expert evidence, evidence of pattern of purchasing and consumption, and the text messages between her and Derrick on the day of her death. In the afternoon on the day Rachel died, she sent a text message to Derrick saying, “I need”. I find that it is reasonable to infer that Rachel needed drugs because she did not have any to consume.

[42] I have also considered that Rachel was 17 years old at the time of her death and had just quit her part-time job at Tim Horton’s. There is no evidence that she had the financial means to purchase large quantities of fentanyl or even that she purchased fentanyl in quantities greater than a point or half point.

[43] The search of Rachel’s room and the items found in her purse are also inconsistent with a finding that Rachel had stocked up on fentanyl. There was no evidence of any significant quantities of fentanyl or any other drugs in Rachel’s room. To the contrary, there was evidence in Rachel’s purse of purchase and consumption of small quantities of drugs – used dime bags and tin foil with drug residue.

[44] Rachel purchasing quantities of fentanyl in amounts greater than what she could consume in the course of a day is purely speculative, is not a reasonable inference to be drawn, and does not accord with the expert evidence which I accept. I find that any inference that Rachel obtained the fentanyl that killed her from someone other than Derrick is purely speculative.

[45] In considering and rejecting the possible inference that Rachel obtained the fentanyl that caused her death from someone other than Derrick, I have also considered the evidence of the text messages. There are text messages exchanged between Derrick and Rachel that confirm that Derrick asked Rachel to check in with him after she consumed the drugs he gave her. Those text messages are relevant both to the mens rea of manslaughter, as canvassed below, as well as a consideration of other possible inferences regarding from whom Rachel obtained the fentanyl she consumed on August 27, 2021.

[46] I find that the only reasonable inference to be drawn on the evidence before me is that the fentanyl consumed by Rachel that caused her death was fentanyl trafficked to her by Derrick on August 27, 2021. If Rachel did have a “stash”, a fact which I specifically reject for the reasons already noted, I still find that those drugs were provided by Derrick based on the history of text messages in evidence between Derrick and Rachel.

[47] Dr. Milroy’s evidence was clear that the cause of Rachel’s death was fentanyl. Having already concluded that Derrick trafficked fentanyl to Rachel, I find that Derrick providing fentanyl to Rachel caused her death. Had Derrick not provided Rachel with fentanyl to consume on August 27, 2021, she would not have died. Derrick provided fentanyl to Rachel for her to consume and that caused Rachel’s death. Therefore, I find that the actus reus of manslaughter has been proven.

[48] Determination of the fault element in this case requires an examination of whether there is an objectively foreseeable risk of bodily harm that is neither trivial nor trifling in trafficking fentanyl. I must also consider the fault element for the predicate offence. Since I have already conducted an analysis on the offence of trafficking, I will not duplicate that analysis here, but rather simply reiterate that I have already found that the mens rea of trafficking has been proven on the evidence before me.

[49] The dangers of fentanyl are now well known to the public at large. As aptly noted by Wendl, J. in R. v. Davidson, [2021] O.J. No. 4930, wherein he reviews the recent caselaw on the sentencing range for trafficking fentanyl, “much has been written about the dangers of fentanyl, which I will not repeat here. However, the bottom line is this: fentanyl kills, and sentences need to reflect that fact.” [7]

[50] There is specific evidence before me that Derrick was aware of the dangers of consuming fentanyl given his claim in his instant messaging exchange with Alicia Cook that he sent Rachel home with Naloxone – the drug used to reverse the effects on an overdose.

[51] There is also evidence in the text messages between Rachel and Derek that he was aware of the risks of consuming fentanyl, and he was aware that Rachel intended to consume the fentanyl he provided her:

• [5:35 p.m.] “I’m doing a toke now”
• [5:37 p.m.] “Pls message me after too thanks”

[52] The only reasonable inference to be drawn from Derrick’s request to Rachel that she message him after using fentanyl is that he was aware of the inherent danger of consuming fentanyl. I am satisfied that Derrick was aware that the consumption of fentanyl created a risk of bodily harm that was neither trivial nor trifling when he trafficked fentanyl to Rachel. The mens rea of manslaughter is therefore proven.

Criminal Negligence Causing Death

[53] Although the same facts give rise to the charge of criminal negligence causing death, because both charges were laid against Derrick, I will briefly review the reasons why Derrick is also guilty on this count.

[54] The following Criminal Code provisions apply:

219 (1) Every one is criminally negligent who

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, duty means a duty imposed by law.

220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable

(c) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a terms of four years; and

(d) in any other case to imprisonment for life.

[55] The Supreme Court of Canada in the Javanmardi case also reiterated the test for criminal negligence causing death:

The actus reus of criminal negligence causing death requires that the accused undertook an act -- or omitted to do anything that it was his or her legal duty to do -- and that the act or omission caused someone's death.

The fault element is that the accused's act or omission "shows wanton or reckless disregard for the lives or safety of other persons". Neither "wanton" nor "reckless" is defined in the Criminal Code, but in R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215, this Court confirmed that the offence of criminal negligence causing death imposes a modified objective standard of fault -- the objective "reasonable person" standard (paras. 7-9; see also R. v. Tutton, [1989] 1 S.C.R. 1392, at pp. 1429-31; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 19; R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 7).

As with other negligence-based criminal offences, the fault element of criminal negligence causing death is assessed by measuring the degree to which the accused's conduct departed from that of a reasonable person in the circumstances. For some negligence-based offences, such as dangerous driving, a "marked" departure satisfies the fault element (J.F., at para. 10; see also: Beatty, at para. 33; R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 30; R. v. L. (J.) (2006), 204 C.C.C. (3d) 324 (Ont. C.A.), at para. 15; R. v. Al-Kassem, 2015 ONCA 320, 78 M.V.R. (6th) 183, at para. 6). In the context of criminal negligence causing death, however, the requisite degree of departure has been described as an elevated one -- marked and substantial (J.F., at para. 9, applying Tutton, at pp. 1430-31, and R. v. Sharp (1984), 12 C.C.C. (3d) 428 (Ont. C.A.)). [8]

[56] Trafficking fentanyl is conduct that departs from that of a reasonable person. The risks of fentanyl, as I indicated earlier, are well known. Derrick was aware that Rachel obtained fentanyl with the intention of consuming it. By providing Rachel fentanyl for her consumption, Derrick’s conduct constituted a marked and substantial departure from that of a reasonable person.

[57] A reasonable person would have foreseen the risks of providing fentanyl to a person intending to consume that drug. Persons who choose to traffic illicit substances are or ought to be aware of the dangers associated with the consumption of those substances.

[58] I have already found that Derrick was aware of the risks associated with the consumption of fentanyl. That finding applies equally in my analysis of whether Derrick is guilty of criminal negligence causing death.

Conclusion

[59] Having found that the only reasonable inference available on the evidence is that Derrick Adams trafficked fentanyl to Rachel Cook on the afternoon of August 27, 2021, the fentanyl which then caused the death of Rachel Cook, the Crown has proven beyond a reasonable doubt that Derrick Adams is guilty of trafficking fentanyl, manslaughter, and criminal negligence causing death. Findings of guilt will be entered on all counts and convictions will register. [9]

Released: November 10, 2022 Signed: Justice A.D. Hilliard

References

[1] R. v. Kernaz, 2019 SKCA 37. [2] R. v. Sansalone (2011), 2010 ONCA 281, 276 C.C.C. (3d) 294 (OCA). [3] R. v. Villaroman, [2016] 1 S.C.R. 100 at para 37 – 38. [4] R. v. Khalid, [2022] OJ. No. 2974 at para 23. [5] R. v. Javanmardi, 2019 SCC 54, [2019] SCJ No 54 at para 25. [6] Ibid at para 31. [7] R. v. Davidson, [2021] O.J. No. 4930 at para 11. [8] R. v. Javanmardi, 2019 SCC 54, [2019] SCJ No 54, supra, at paragraph 19 – 21. [9] Counsel will be invited to make submissions on whether the criminal negligence causing death should be stayed on account of Kienapple.