WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.— (1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.— Everyone who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

DATE: 2023 01 11 COURT FILE No.: Central East Region: Oshawa Court File # 21-25083-00

BETWEEN:

HIS MAJESTY THE KING

— AND —

JACOB MARTIN NORN

Before: Justice Peter C. West

Evidence Heard on: September 19, 20, 21, 22, 23, 26 and 27, 2022 Reasons for Judgment released on: January 11, 2023

Counsel: Mr. Michael Hill and Mr. R. Greenway........................... counsel for the Crown Mr. P. Thorning and Ms. S. Pffeiffer.. counsel for the defendant Jacob Norn

WEST J.:

[1] Jacob Norn elected to be tried by a court composed of a judge and jury in respect of charges he faced and to have a preliminary inquiry in respect of two of those charges; namely, trafficking in a schedule 1 substance – fentanyl (Count 1) and manslaughter (Count 7). The defence concedes committal of the trafficking in fentanyl charge but submits there is not sufficient evidence to commit Jacob Norn of the charge of manslaughter. The Crown position is that there is more than sufficient evidence to order committal on the charge of manslaughter.

[2] As part of the Crown’s case a video-recorded police statement of Jacob Norn was presented and as a result the Crown is required to prove beyond a reasonable doubt that this statement was made voluntarily by Jacob Norn. It is the position of the Crown that this onus has been met and the police statement should be found to have been voluntarily made. The defence argued that this statement was not voluntary.

[3] For the reasons which follow, it is my view there is sufficient admissible evidence upon which a reasonable jury, properly instructed could commit Jacob Norn on the offence of manslaughter. It is my view there is sufficient admissible evidence for committal on this charge without the video-taped police statement of Jacob Norn for the reasons that follow. I will be providing separate reasons with respect to the video-recorded police statement of Jacob Norn and whether the Crown has established beyond a reasonable doubt that it was made voluntarily and therefore admissible.

Summary of Evidence Presented at the Preliminary Inquiry

[4] Tyler Ginn died in his bedroom sometime over the course of the evening of March 11 and the morning of March 12, 2021. He was 18 years of age, healthy with no illnesses and was living with his father, Sheldon Ginn, in Whitby.

[5] The evidence also disclosed that Tyler Ginn was a drug user. This was something his girlfriend, Sarenity Storey was aware of and to a lesser extent his father also knew his son was using drugs. Sarenity Storey came to Tyler’s home on March 11, 2021, at around 7 p.m. She went to his bedroom on the second floor and saw he was drinking a beer. When she first arrived she did not observe Tyler display any indicia of impairment and it was not until later in the evening that she observed Tyler use drugs.

[6] When Sarenity first arrived she said they were talking about things they had done and a ski trip he was going on. He then started to go on his phone and was not paying attention to her. She did not know what he was doing on his phone.

[7] At March 11, 2021, 6:59 p.m. there is a text conversation using Snap Chat between Tyler Ginn using his cell phone and the person using Jacob Norn’s cell phone, which is completed at 7:29 p.m. The Investigative Report of D/C Villena, Tab 6, Exhibit 1 (s. 540(7 materials) revealed the following portions of this text conversation:

• Tyler’s phone “chop me a 20$ of diz” (6:59:24 p.m.)
• Tyler’s phone “So a half a . Right”
• Tyler’s phone “I need you to bring me a straw and tinfoil”
• Tyler’s phone “and a half point”
• Tyler’s phone “I’m ready fam”
• Jacob’s phone “It will be before 8”
• Tyler’s phone “Broooo please stop here jn”
• Jacob’s phone “I’ll come to u”
• Tyler’s phone “please put under my front mat”
• Jacob’s phone “not chopping under mat”
• Jacob’s phone “come out”
• Tyler’s phone “How long ur here”
• Jacob’s phone “1:30
• Tyler’s phone “1 min?
• Jacob’s phone “Yeah”
• Jacob’s phone “Here” (7:29:14 p.m.)

[8] Det. Mackintosh was qualified as a drug expert and he testified that the text conversation indicated Tyler Ginn was purchasing drugs from the person using Jacob Norn’s cell phone. The word “chop” is used in the drug culture to refer to completing a drug deal. The word “diz,” although not common, is used to refer to MDMA and Fentanyl. Tyler’s request that the seller provide him with a straw and tin foil are both items used in the consumption of illicit substances. A straw is utilized to snort powder or inhale smoke of the vapors of heroin or Fentanyl. The tin foil is commonly used to put the Heroin or Fentanyl on, heat it and then inhale the vapors. The reference to “half a .” and “half a point” is commonly used when purchasing Heroin or Fentanyl and is referring to half a point or .05 of a gram. A point of Heroin or Fentanyl is typically $20 to $40 so a half point at $20 is consistent with a drug deal for Heroin or Fentanyl in that amount. These amounts and the price of $20 on the evidence relate to Fentanyl or Heroin. Det. Macintosh’s Report was in Exhibit 1, Tab 7.

[9] A bank record was found recorded on Tyler’s phone showing an INTERAC eTransfer of $20.00 that was deposited from Tyler’s account to the account of Jacob Norn on March 11, 2021, at 7:29 p.m. Exhibit 1, Tab 4.

[10] Tyler left the bedroom around 7:30 p.m. and Sarenity thought he was going downstairs to get food. Tyler’s father saw him come downstairs and put the plates of food by the stairs and he indicated he just had to go to his van to get something and he went outside. The Ginn residence has a security video, which was seized by the police. Exhibit 2 shows the front of the residence and a vehicle, possibly a Honda Ridgeline or Chev Avalanche pick-up truck, arrived on the street at approximately 7:29 p.m. and parked out in front on the street. Tyler Ginn can be seen exiting the house from the garage at 7:30 p.m. and he got into the front passenger seat of the pickup truck. At 7:31 p.m. Tyler exited the truck and went back inside his house. Sheldon Ginn identified his son as the person who exited the house, got into the truck and then returned to the house.

[11] There was evidence that Jacob Norn is associated with a Honda Ridgeline pick-up truck.

[12] Sarenity described Tyler coming back into the bedroom and going directly into the bathroom. He did not have any food. She saw him take something out of his pocket as he was walking into the bathroom. He pulled out what looked to her like tin foil with something wrapped in it. He took out another piece of tin foil, took a big blue torch and put it on top of the piece of tin foil to hold it at the edge of the counter and he then put the substance that was in the first piece of tin foil onto this piece of tin foil.

[13] Sarenity described the substance that had been inside the tin foil Tyler took from his pocket as being purple – a dirt purple powder substance with some “rocks” or “chunks.” Tyler asked Sarenity for a lighter but she did not have one and then he found one. He lit the tin foil that was hanging off the edge of the counter, underneath from the bottom and he was smoking it with a straw. All of the items described by Sarenity were shown in the photographs in Exhibit 1, Tab 7.

[14] Sarenity testified that immediately after inhaling the smoke from heating the purple substance Tyler stumbled out of the bathroom and sat on the bed. He appeared to be trying to keep himself standing and walk straight but he could not. Sarenity testified he looked like he was “discombobulated.” She asked him what he had smoked and he was not giving her a direct straight answer.

[15] While he was sitting on the bed he received a phone call on his cell phone. He put his phone on speaker and she heard the person on the other end of the phone, it was Jacob Norn. The phone also said on the screen it was J. Norn. She knew Jacob’s voice, she had met him before through Tyler and she knew it was him on the phone. Sarenity identified Jacob Norn as sitting in court. Jacob asked Tyler if he was okay and Tyler said he was fine and then Jacob said he was just checking on him because he didn’t want Tyler to do a lot of what he gave him and that he didn’t want to be responsible if something happened. Tyler told him not to worry as he only did a little bit and nothing would come back to him if anything happened. Sarenity asked Tyler again what he had taken and initially he wouldn’t exactly tell her until he went back into the bathroom to take another hit and he told her it was something called “daiz.” Tyler said it was to get him high and Sarenity testified she gave him a nasty look and he told her if she was going to look at him like that to leave the bathroom and then he shut the door after she left.

[16] Before she left she saw Tyler put the hit in the tin foil and that was when she gave him the look. Less than ten minutes later he came out. He was struggling to stay up and barely made it to the bed, he sat on the bed, he was on his phone. He said to her “Something’s wrong” and she asked him if he was okay and if he wanted her to do anything. He said he was fine and continued to sit there. About 40 minutes later he started kind of “dozing off.” Tyler was nodding in and out, like he was falling asleep and then waking back up. She testified she had seen Tyler in a similar state previously from using drugs.

[17] After a while he was laying on the bed asleep. She left him for about ten minutes to see if he had fallen asleep, tried to wake him up by nudging him and believed he was sleeping. She got a text from a friend, Gavin, -- Tyler was supposed to bring him some snacks, so she responded on Tyler’s phone and told Gavin, “Tyler’s asleep, but I can give it to you.” She waited for them, they messaged her on her phone and she made sure Tyler was breathing, he was okay so she turned out the lights and grabbed the box of snacks and went out to meet Gavin. They drove her home. She said goodbye to Tyler’s dad.

[18] Sheldon Ginn went into Tyler’s bedroom at 8:30 a.m. on March 12, 2021, to wake him up so he could go to work. He found Tyler lying on his bed, he wouldn’t wake up. He called 911. Police, ambulance and fire attended, as did the coroner, Dr. M. Moreau, who pronounced death on March 12, 2021.

[19] PC Bandstra was the first police officer to arrive on scene. He went to Tyler Ginn’s bedroom and found him lying face down on the bed. He put a police seal on the bag Tyler Ginn’s body was transported in. He also seized Tyler’s cell phone, which he found on the bed. He seized two Canada Post envelopes. He went into the adjoining bathroom and saw drug paraphernalia and evidence of drug use. He did not seize all of the drugs and drug paraphernalia that he observed. His instructions were only to seize four glass jars with possible drugs, which he did and he submitted them for analysis.

[20] At some point after the police left the Ginn residence, Sarenity texted Sheldon Ginn and learned about the police searching and taking the glass jars, containing Dabs, which was crystalized THC. She asked if they took the tin foil with the purple substance in it. Sheldon checked the bathroom and sent her a picture of what he found. The Crown showed Sarenity photos taken by the police (photos 72 and 73), which she identified as the blue torch holding the tin foil with the purple substance that Tyler heated up and the piece of tin foil he took from his pocket after coming back from going downstairs. Sarenity described these photos as depicting exactly how she remembered it from that night.

[21] Sheldon Ginn contacted D/C Bortoluss later during the day on March 12, 2021, and advised what he had been told by Sarenity and that he had secured the tin foil and purple substance by putting it in a Ziplock bag. Arrangements were made for the items to be turned over to the police on March 15, 2021 as Sheldon Ginn advised he was leaving to spend the weekend with his parents. On March 15, 2021, D/C Bortoluss and D/C Villena and PC Roffey attended Sheldon Ginn’s house and PC Roffey seized the tin foil and purple substance, placed a police seal on the evidence bag and submitted it to be tested.

[22] The purple substance tested and was found to be Fentanyl, a Schedule 1 substance in the CDSA. Exhibit 1, Tab 3.

[23] Part of the postmortem examination drew blood from the body of Tyler Ginn and this was sent to the Centre of Forensic Sciences for forensic toxicology testing. Ms. Cara Shephard, a Forensic Toxicologist at the Centre of Forensic Sciences, was qualified as an expert on consent and she found levels of Fentanyl (an opioid) – 6.9 nanograms per millilitre ( + 0.5 nanograms per millilitre) in Tyler Ginn’s blood that have been associated with toxic levels leading to death. She also found Etizolam – 17 nanograms per millilitre, in Tyler Ginn’s blood, which is a central nervous system depressant. This substance is not available in Canada or North America. Ms. Shepard testified this level is on the low side and has been associated with the therapeutic use and also a concentration reported following recreational use. This concentration could produce effects of sedation and drowsiness. (Exhibit 1, Tab 2, Forensic Toxicology Report.) The combined administration of Fentanyl and Etizolam could produce more pronounced central nervous system depression. There was no way for Ms. Shephard to determine if the Fentanyl and Etizolam were consumed at the same time or as part of the same pill. Ms. Shepard agreed that drugs consumed through inhalation cause a more rapid effect following inhalation compared with oral administration.

[24] The cause of death as determined by the pathologist, Dr. Pickup, was combined fentanyl and etizolam toxicity. There was no other contributing cause of death found. Tyler Ginn was not injured in any way and no disease or illness was found on autopsy. (Exhibit 1, Tab 1 Postmortem Examination Report.)

Test at a Preliminary Inquiry

[25] The law is well-settled at a preliminary inquiry, the justice is to determine whether or not there is any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty upon the charges against the accused. This legal standard applies on all preliminary inquiries, regardless of whether the case against the accused is based upon direct evidence, circumstantial evidence, or a combination of both kinds of evidence. Moreover, the preliminary inquiry justice must refrain from assessing the credibility of witnesses, weighing the testimony, considering the quality or reliability of the evidence, drawing factual inferences from the evidence, or making any determinations of fact. Those are all functions that are strictly reserved for the trier of fact -- in this case, the jury. See United States of America v. Shephard, [1977] 2 S.C.R. 1067, at pp. 1079-1080; R. v. Mezzo, [1986] 1 S.C.R. 802, at pp. 836-845; R. v. Monteleone, [1987] 2 S.C.R. 154, at p. 160-161; R. v. Morabito, [1949] S.C.R. 172, at p. 174; R. v. Charemski, [1998] 1 S.C.R. 679, at paras. 2-4.

[26] In R. v. Arcuri, [2001] 2 S.C.R. 828, the Supreme Court of Canada confirmed that this same legal standard applies regardless of whether the evidence is direct or circumstantial, but noted that the task of the preliminary inquiry judge is somewhat more complicated in cases of circumstantial evidence as, in such cases, the judge must determine what potential inferences are reasonably open to the jury from the circumstantial evidence. More particularly, McLachlin C.J.C., delivering the judgment of the court, stated, at para. 23, that answering this question, about available inferences, "inevitably requires the judge to engage in a limited weighing of the evidence," in the sense of "assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw." In short, the judge asks only "whether the evidence, if believed, could reasonably support an inference of guilt." Further, and importantly, at paras. 25-32, the Supreme Court reaffirmed the "continuing validity" of the "traditional common law rule" articulated in United States of America v. Shephard. McLachlin C.J.C. stated, at para. 30:

In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judge's task is to determine whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. Thus, this task of "limited weighing" never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.

[27] In addition, as the Supreme Court of Canada confirmed in R. v. Sazant, [2004] 3 S.C.R. 635, at paras. 18 and 25 (2), this limited weighing process does not involve choosing amongst competing reasonable inferences, which is the sole jurisdiction of the trier of fact, but rather involves determining only the field of potential factual inferences that could reasonably be drawn in the circumstances. See also R. v. Dubois, [1986] 1 S.C.R. 366, at p. 380; R. v. Campbell (1999), 140 C.C.C. (3d) 164 (Ont. C.A.), at paras. 6-9; R. v. Montour, [2002] O.J. No. 141 (C.A.), at paras. 3-4; R. v. Bogiatzis, [2002] O.J. No. 736 (S.C.J.), at para. 25. Indeed, any doubt as to the inferences to be drawn from the evidence must be resolved, at the preliminary inquiry stage, in the Crown's favour: R. v. Sazant, [2004] S.C.J. No. 74 (S.C.C.); R. v. Deschamplain, [2004] 3 S.C.R. 601; R. v. Magno, [2006] O.J. No. 2590 (Ont. C.A.) at para. 15; R. v. Foster, [2008] O.J. No. 827 (Ont. Sup. Ct. J.); and R. v. Coke, [1996] O.J. No. 808 (Sup. Ct. J.) cited in R. v. Ghazzi, [2006] O.J. No. 4052 (Ont. C.A.) at para. 2. Consequently, the weighing of the evidence for competing inferences, frailties or contradictions has no place in the Shephard test. Neither can a preliminary hearing judge assess the dubious nature of the Crown's case or the reliability of the evidence or concerns about its weight.

[28] Further, the inferences to be drawn from circumstantial evidence need not be "compelling" or even "easily drawn" in order to be reasonable. If an inference is a reasonable and logical one, the question of whether or not it should ultimately be drawn must be left for the trier of fact. If there are competing inferences, these are for the trier of fact to resolve and if a reasonable inference in favour of the Crown is available to be drawn, then, regardless of its strength, a judge conducting a preliminary inquiry is required to draw it. See R. v. G.W. (1996), 93 O.A.C. 1 (C.A.), at para. 62; R. v. Katwaru (2001), 153 C.C.C. (3d) 433 (Ont. C.A.), at paras. 37-41; R. v. Munoz (2006), 86 O.R. (3d) 134 (S.C.J.), at paras. 18-22.

[29] Accordingly, at the preliminary inquiry, the justice must proceed on the basis that all available reasonable inferences might be drawn in favour of the Crown by the trier of fact. As Doherty J.A. recently stated, in delivering the judgment of the Court of Appeal for Ontario in R. v. Jackson, 2016 ONCA 736, at para. 7:

In conducting this limited weighing, the preliminary inquiry judge takes the case for the Crown at its highest, meaning she accepts the credibility of the evidence relied upon by the Crown and assumes the reasonable inferences from the primary facts that are most favourable to the Crown: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18; R. v. Foster (2008), 76 W.C.B. (2d) 769 (Ont. S.C.), at para. 31; and R. v. Howells, 2009 BCCA 460, 85 W.C.B. (2d) 370, at paras. 13-14.

If the preliminary inquiry judge decides that on a view of the evidence most favourable to the Crown, the circumstantial evidence could reasonably support the inferences necessary to establish guilt, she must commit the accused for trial. It is irrelevant that the evidence also supports inferences inconsistent with guilt.

[30] In the case of R. v. Munoz (2006) 205 C.C.C. (3d) 70 (Ont. Sup. Ct.), Justice Ducharme sought to define what constitutes a “reasonable inference”:

Any inferences relied upon by the judge to commit the accused must be both: (1) reasonably based on the evidence heard at the preliminary inquiry; and (2) reasonable. Such inferences cannot be based on speculation, no matter how seemingly reasonable. If the committal of an accused depends on an inference or inferences that cannot be reasonably drawn from the evidence – the accused must be discharged as there would be an absence of evidence on an essential element.

[31] At paragraph 25, Justice Ducharme went on to echo the comments made by Justice Doherty in R. v. Morrisey (1995) 97 C.C.C. (3d) 193 (Ont. C.A.), when discussing what types of inferences can be drawn:

A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation.

[32] An inference is permissible so long as it is reasonable and logical. It need not be a strong inference or be capable of creating practical certainty or be easy to draw. As stated by the Court of Appeal in R. v. Katwaru, [2001] O.J. No. 209 (Ont. C.A.) at para. 40:

In order to infer a fact from established facts, all that is required is that the inference be reasonable and logical. The fact that an inference may flow less than easily does not mean that it cannot be drawn. To hold otherwise would lead to the untenable conclusion that a difficult inference could never be reasonable and logical.

[33] As I have indicated above, as a preliminary inquiry judge, I am to determine whether the inferences argued by the Crown are available to a reasonable jury, properly instructed, on the evidence called. I recognize reasonable inferences are those drawn from facts established by the evidence and must rise above mere speculation. I also recognize I am not to choose between competing inferences that are available and must take the Crown’s evidence at its highest. Inferences to be drawn from circumstantial evidence need not be “compelling” or “easily drawn” in order to be reasonable. A preliminary inquiry judge is not to assess the credibility or reliability of the evidence or the weight to be given to a witness’ evidence, the question of whether an inference should ultimately be drawn must be left to the jury. In determining if reasonable inferences are available on the evidence the preliminary inquiry judge must not consider the evidence in a piecemeal fashion but rather must consider the totality or the whole of the evidence.

Proof of “Unlawful Act” Manslaughter

[34] Under s. 234 of the Criminal Code, manslaughter is defined as “culpable homicide that is not murder or infanticide”. Based on this definition, manslaughter is when a person causes the death of another by criminal negligence or an unlawful act without malice aforethought.

[35] The essential elements of the offence of unlawful act manslaughter are:

1. The actus reus is the commission of an objectively dangerous unlawful act, which causes death.
2. The mens rea is twofold: a) the intent to commit the underlying unlawful act, and b) the objective foreseeability of the risk of bodily harm, which is neither trivial nor transitory, in the context of the dangerous act.

(See R. v. Creighton, [1993] 3 S.C.R., at para. 34; R. v. Haas, 2016 MBCA 42, at para. 32, leave to appeal to SCC ref’d, [2006] S.C.C.A. No. 306; R. v. H.C. [2022] O.J. No. 2311 (C.A.), at para. 34.

[36] The test for causation in manslaughter is whether an accused person’s actions were “a contributing cause of death, outside the de minimis range” see R. v. Smithers, [1978] 1 S.C.R. 506. This test has also been additionally expressed as a ‘significant contributing cause’ or a ‘substantial cause’ in R. v. Nette, [2001] 3 S.C.R. 488, at para. 72. As explained in Nette, causation has two components – factual causation and legal causation.

[37] Factual causation concerns "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 at para 44). As the Court explained in R. v. Maybin, [2012] 2 S.C.R. 30, at para. 20, "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 (see Maybin at para 21). As Arbour J. note in Nette, at para. 77, cited with approval in Maybin, at para. 21:

The difficulty in establishing a single, conclusive medical cause of death does not lead to the legal conclusion that there were multiple operative causes of death. In a homicide trial, the question is not what caused the death or who caused the death of the victim but rather did the accused cause the victim's death. The fact that other persons or factors may have contributed to the result may or may not be legally significant in the trial of the one accused charged with the offence. It will be significant, and exculpatory, if independent factors, occurring before or after the acts or omissions of the accused, legally sever the link that ties him to the prohibited result.

[38] Legal causation is "directed at the question of whether the accused person should be held criminally responsible for the consequences that occurred" (Nette at para 45). It is based on "concepts of moral responsibility and is not a mechanical or mathematical exercise" (at para 83). As stated by Karakatsanis J in Maybin (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.

[39] As indicated above the Crown must not only prove an intention to commit the unlawful act but also must prove the objective foreseeability of the risk of bodily harm, which is neither trivial nor transitory, in the context of the dangerous act. Whether another event is an intervening act is part of the analysis as to whether legal causation has been established, and whether an accused person should be held legally accountable for the death (see Maybin, at para. 22). The trier of fact at the trial must look to whether the risk of harm caused by the intervening event, if there is evidence an intervening act occurred, was reasonably foreseeable to the accused person when he committed the underlying unlawful act. As Karakatsanis J, explained (at para. 30):

An intervening act that is reasonably foreseeable will usually not break or rupture the chain of causation so as to relieve the offender of legal responsibility for the unintended result. This approach posits that an accused who undertakes a dangerous act, and in so doing contributes to a death, should bear the risk that other foreseeable acts may intervene and contribute to that death. Because the issue is whether the actions and consequences were reasonably foreseeable prospectively, at the time of the accused's objectively dangerous and unlawful act, it accords with our notions of moral accountability. This approach addresses the question: Is it fair to attribute the resulting death to the initial actor?

Application of the Evidence to the Law

[40] The defence has conceded committal on the charge of trafficking in a Schedule 1 substance, Fentanyl. In my view on the evidence there is a reasonable inference that Jacob Norn intended to commit the underlying unlawful act of trafficking in Fentanyl. I agree with this concession as a reasonable jury, properly instructed, could infer that it was Jacob Norn who texted with Tyler Ginn and together they arranged the purchase of $20 of “diz”, which refers to Fentanyl and then Jacob Norn attended the Ginn residence in the Honda Ridgeway to deliver the $20 of Fentanyl he agreed to sell to Tyler Ginn. I agree with the Crown’s discussion of the facts at para. 51, (a) to (e), of their Written Argument on Committal, supporting this reasonable inference. Further, I find there is a reasonable inference available on the evidence presented by the Crown on this preliminary inquiry, which I have set out above, that the drug sold to Tyler Ginn by Jacob Norn was Fentanyl, even without Jacob Norn’s admission in his police statement. It is also my view that the request for a straw and tin foil by Tyler Ginn and Jacob Norn providing these items to Tyler Ginn when he provided the purple substance in tin foil further leads to the reasonable inference the drug provided was Fentanyl. A further piece of evidence was the analysis of the residue of the purple substance on the tin foil Sarenity observed Tyler Ginn heat and inhale the smoke from, which was found to be Fentanyl. Sarenity testified this purple substance came from a rolled up piece of tin foil she observed Tyler take out of his pocket after returning from downstairs just after 7:30 p.m., which was the time Tyler went to the Honda Ridgeline operated by Jacob Norn, who had agreed to provide Tyler with a half a point of “diz”, which Det. Mackintosh testified refers to Fentanyl.

[41] I find that trafficking in Fentanyl is inherently dangerous as discussed in the evidence of Det. Mackintosh and the CFS Toxicologist, Cara Shepard. Further, it is my view Fentanyl is a very powerful opioid, and is an extremely serious and dangerous illicit controlled substance, which has created an unprecedented health crisis in Canada and its use regularly results in significant risk of serious bodily harm and death to those who consume it. I find this is a fact I can take judicial notice of and I do. Further, in my view this was reasonably foreseeable to Jacob Norn who was actively involved in trafficking Fentanyl and other serious illicit substances.

[42] In the Defence Submissions (Committal to Stand Trial), at paras. 89-102, the defence argument dealt exclusively with the issue of causation, arguing that there was no evidence that the Fentanyl Jacob Norn trafficked and sold to Tyler Ginn contained both Fentanyl and Etizolam. Dr. Pickup in his Postmortem Report determined the immediate cause of death was “combined Fentanyl and Etizolam toxicity.” The defence pointed to evidence relating to Tyler Ginn receiving an envelope from another drug trafficker from Ottawa and submitted there was evidence this envelope contained both Xanax and vials of Dab (crystalized THC). From my review of the evidence of Sarenity Storey and Sheldon Ginn, neither individual saw Tyler Ginn open the Canada Post envelope he received on March 11, 2021, or the Canada Post envelope Tyler Ginn had received earlier, although no date was ever indicated on the evidence. When Sarenity arrived the envelope received on March 11 was already opened. In fact, contrary to para. 38 of the Defence Submissions there was no evidence this envelope had contained “Xanax bars”. Sarenity testified Tyler Ginn never said anything to her about the Xanax he was to receive. He never said what the Xanax looked like. Sheldon Ginn testified his son only asked him to smell the vials because his son thought they were off and although Sheldon Ginn was aware his son had previously used Xanax, he did not see if there was any Xanax in the envelope received on March 11. Sarenity testified she did not see any Xanax and did not observe Tyler take any Xanax on March 11 and it was only an assumption on her part that he had taken Xanax prior to her arriving at his house that evening. This was because she had not observed what came in the envelope and she did not see Tyler take any Xanax while she was there at his house on March 11.

[43] It is my view the defence submissions respecting Tyler Ginn taking what he thought was Xanax, but was Etizolam, is pure speculation without any support in the evidence. Further, it is my view that the defence submission that Tyler Ginn had consumed an Etizolam-like substance cut with Fentanyl prior to consuming the Fentanyl provided by Jacob Norn is also pure speculation without any support in the evidence. It is also my view; however, even if there was evidence Tyler Ginn had consumed Xanax as submitted by the defence, the additional half a point of Fentanyl provided to Tyler Ginn by Jacob Norn was clearly a “contributing cause outside the de minimis range” and was a “significant contributing cause” given the total concentration of Fentanyl found in Tyler Ginn’s blood and the evidence of Ms. Shepard. A concentration that the CFS Toxicologist testified was toxic and associated with fatalities. Whether other possible reasonable inferences might be available if this evidence had been led, it is my view they would have to be determined by the trier of fact and not by the preliminary inquiry judge.

[44] Originally in her evidence Sarenity testified when she first arrived at the house, Tyler was not impaired in any way but in cross-examination her evidence changed and she said when she arrived Tyler was a bit slower but she did not know if it was because he had an open beer or because he had taken Xanax. In cross-examination she now said she thought Tyler was high off something but she was not sure what it was because she had not seen him take anything, other than her observing him consuming a bottle of beer when she first arrived. Of course her evidence of what occurred after Tyler Ginn inhaled the smoke from heating the purple substance, after he returned from receiving it from Jacob Norn, and how Tyler Ginn responded immediately after the second occasion he did this, despite being warned by Jacob Norn about how strong and powerful the “diz” he provided was, all lead to reasonable inferences that the purple substance was a significant contributing cause of Tyler Ginn’s death.

[45] While Sarenity was aware that Tyler Ginn had purchased Xanax from this dealer in Ottawa, he also purchased it from other dealers, both in and outside of Brooklin where he lived. He did not buy from just one person. No details about Tyler Ginn’s use of Xanax were provided in the evidence, for example, when he purchased it or when he consumed it or how often he consumed it or even when he first started using Xanax. The same applies to his use of other illicit substances. Sarenity knew he had on a previous occasion taken up to 10 Xanax and he was fine afterwards. The drug dealer in Ottawa was a new source who sold larger quantities of Dabs, instead of a gram, he sold 7 grams and ounces. The defence brought out from Det. Graham that two police officers had interviewed the Ottawa drug dealer but no drugs (Xanax) were seized. It is difficult to see how police officers from Toronto would be able to seize Xanax from Chris Burrows when they are there to conduct a witness interview. The fact is that no Xanax was seized and as a result there is no evidence concerning any Xanax that may or may not have been sold to Tyler Ginn by Chris Burrows.

[46] Further, the defence brought out from Ms. Shepard that Xanax was a similar drug to Etizolam as both are derivatives of the benzodiazepine class, a central nervous system depressant. She testified the concentration found in Tyler Ginn’s blood was associated with therapeutic use or was reported following recreational use but it was not a concentration that would be expected to cause a fatality. She testified there are no reliable reports of fatalities attributed to Etizolam and that is because it is rare for benzodiazepine substances to cause fatalities on its own. This was why she did not put any conclusions in her report concerning fatalities involving Etizolam and secondly, she testified the concentration of Etizolam detected was on the low side. Ms. Shepard indicated while Etizolam would not be expected to cause death on its own it could potentiate or increase the effect of the Fentanyl. THC would not be expected to increase the toxicity of the Fentanyl and Etizolam.

[47] Ms. Shepard was unable to tell precisely when the Fentanyl was taken by Tyler Ginn. She can only provide a range of time. Ms. Shepard testified there would be no way to tell if the Fentanyl and Etizolam were taken at the same time. There is the evidence of Sarenity Storey, however, that Tyler Ginn consumed the purple substance by inhaling its smoke when he heated it on the tin foil shortly after 7:30 p.m. and she did not see him consume any Xanax bars prior to this or at the same time. Ms. Shepard testified she tested for Alprazolam, which Xanax is the brand name for and none of that substance was detected in Tyler Ginn’s blood. Based on the half life of Etizolam Ms. Shepard indicated the maximum time it would remain in the body would be 36 hours but it could be less. Ms. Shepard also testified that it was very common in her work to find Etizolam in combination with drugs like Fentanyl but she could not say whether Etizolam was used as a cutting agent for Fentanyl. She testified she was aware that cutting agents were often used to increase the bulk of a drug or to make the primary drug more powerful.

[48] There was also evidence that Tyler had received another Canada Post envelope earlier, although the date of that delivery was not clear on the evidence and there was no direct evidence of what it contained or that it had contained both Xanax and Dabs.

[49] The defence submitted that because there was no evidence that Jacob Norn provided Etizolam to Tyler Ginn, he should be discharged on the manslaughter charge. In my view this completely ignores the test for committal and the essential elements respecting unlawful act manslaughter outlined above. I must take the Crown’s case at its highest. I am not to access credibility and reliability of witnesses except pursuant to the limited weighing outlined in Arcuri relating to circumstantial evidence. The law respecting unlawful act manslaughter that I have set out only requires some evidence that the Fentanyl sold and provided by Jacob Norn to Tyler Ginn was a contributing cause of Tyler Ginn’s death – "factual causation is not limited to the direct and immediate cause, nor is it limited to the most significant cause”. There are many reasonable inferences available on the evidence led by the Crown at the preliminary hearing, for example:

1. Jacob Norn called Tyler Ginn shortly after providing the purple substance wrapped in tin foil and warned him about how strong this “diz” was (Sarenity thought Jacob Norn called it “Diaz” but this could have just been what she thought he said as she had not heard this term previously). In my view this leads to the reasonable inference Jacob Norn subjectively had knowledge that the risk of serious bodily harm was reasonably foreseeable. The fact Jacob Norn thought it necessary to caution and warn Tyler further leads to the reasonable inference that Jacob Norn knew Tyler Ginn was not an experienced or regular user of Fentanyl, which would have increased his risk of serious bodily harm or death, something that Jacob Norn was also aware of and which caused him to give this warning. I have already indicated that from an objective point of view, the fact that Fentanyl is a powerful opioid that often causes serious bodily harm was reasonably foreseeable;
2. Perhaps Etizolam had been consumed earlier (up to 36 hours earlier or a lesser time before) by Tyler Ginn but according to the CFS Toxicologist the concentration found in Tyler’s blood would not have led to his death; however, the Fentanyl was of sufficient concentration to cause Tyler Ginn’s death and did. In my view this leads to the reasonable inference that the Fentanyl was a “contributing cause of death outside the de minimis range” or a “significant contributing cause” or “substantial cause” and ultimately this is a determination to be made by the trier of fact at a trial;
3. The fact that Jacob Norn was not present when Tyler Ginn consumed the Fentanyl in my view did not break the chain of causation. Jacob Norn provided Fentanyl to Tyler and moments after Jacob Norn had driven away Tyler took his first inhalation of the smoke from heating up the Fentanyl. This is what Jacob Norn’s unlawful act of trafficking was to facilitate. Tyler’s consumption was what was reasonably foreseeable by Jacob Norn. In my view Jacob Norn is morally responsible for Tyler Ginn consuming the Fentanyl. The act of trafficking and consumption are closely linked in time.
4. The fact Tyler Ginn took a second hit after being warned by Jacob Norn not to take too much because the Fentanyl was very strong and Jacob Norn did not want anything to come back on him, is an intervening act that was reasonably foreseeable by Jacob Norn – the selling of a serious, powerful drug like Fentanyl, is a dangerous unlawful act that is reasonably foreseeable by Jacob Norn could cause serious bodily harm or death to the purchaser/user and this is not something that would break the chain of causation. I agree with the Crown’s submission that the text message exchange reflected that Tyler Ginn was anxious to receive the Fentanyl as soon as possible. Further, in his eagerness he could consume more than he safely should or that his judgment would be impaired by his consumption and he would ignore Jacob Norn’s warning. In my view it is reasonably foreseeable that a purchaser would consume all of the drug they purchase and as I have already indicated Jacob Norn had a subjective appreciation of the risk he had caused.
5. Finally, it is enough that there existed reasonable foreseeability of non-trivial harm to Tyler Ginn as a result of the unlawful act of trafficking in Fentanyl and it is not necessary that Jacob Norn reasonably foresaw the risk of death to Tyler Ginn, although in my view it is difficult to imagine how he could not have been aware.

[50] These are all reasonable inferences on the evidence led during this preliminary hearing from which a reasonable jury, properly instructed could convict on the charge of unlawful act manslaughter and as a result there will be a committal on that charge.

Released: January 11, 2023 Signed: Justice Peter C. West