COURT FILE AND PARTIES

COURT FILE NO.: Cr. 13-0013
DATE: 2013-11-19

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

Trisha Ann Pheasant

Applicant

Jeremy Schaffer, for the Crown

Michael J.N. Haraschuk, for the Applicant

HEARD: October 15, 2013 in Gore Bay

DECISION ON APPLICATION FOR CERTIORARI

r.d. GORDON j.:

Overview

[1] On May 10, 2013, following a preliminary hearing held January 7, 8, and 9, 2013 before the Honourable Justice N. Glaude in the Ontario Court of Justice, the Applicant, Trisha Pheasant, was committed to stand trial on one count of criminal negligence causing death, contrary to section 220 of the Criminal Code, one count of manslaughter, contrary to section 236(b) of the Criminal Code, and one count of trafficking in a controlled substance, contrary to section 5(1) of the Controlled Drugs and Substances Act.

[2] The Applicant asks this court to quash committal on the counts of criminal negligence causing death and manslaughter.

Background Facts

[3] Methadone, an opiate, is a controlled drug prescribed to persons who are heavily addicted to other opiates. The prescription process is tightly controlled and anticipates diminishing portions of the drug being dispensed over time in order to wean the addict from his or her dependency. The dispensation of methadone is strictly controlled because it can be fatal to those who do not have an adequate resistance to opiates. Most of the time it is administered onsite at a methadone clinic under the supervision of a pharmacist or physician. In some cases, and only under strict qualifying criteria, persons are granted the privilege of taking their methadone doses at home. This procedure is permitted where the person undertakes, after being fully informed of the risks and requirements, to properly guard and care for the dose they are given. This is known as a “carry home dose”.

[4] A carry home dose is given on the basis that it will be transported and stored in a container with either a key or combination lock. Given that it is to be stored in a locked box at all times by a person who has been warned of its dangers, the bottle containing the methadone within the locked box does not contain a specific warning about its toxicity.

[5] Methadone is meant to be consumed orally. To that end it is generally mixed with water and flavouring before being dispensed. In addition to overcoming its bitter taste, dispensing methadone in this fashion prevents the user from drawing it into a syringe and injecting it.

[6] When these crimes are alleged to have been committed, the Applicant was participating in a Methadone Program to assist her in overcoming her drug addiction. She had been approved for and was participating in the carry home dose procedure.

[7] The Applicant and Mr. Trudeau were friends. On Friday, August 6, 2010 she visited with him at his residence in Wikwemikong, Ontario. During the visit, the Applicant asked to borrow $20 from Mr. Trudeau. Having had a history of borrowing from him and not repaying in a timely manner, the Applicant offered to leave a “jar” with Mr. Trudeau as collateral. The “jar” was actually a prescription bottle that was about four inches in height, had a childproof top, was labelled as methadone and had Ms. Pheasant’s name on it. The jar contained a substance that, the Applicant stressed, she was required to consume or else she would get very sick. She explained to Mr. Trudeau that the contents of the jar were dangerous and that if anyone drank it they could get very sick and die.

[8] Eventually, he agreed. The Applicant placed the jar in Mr. Trudeau’s fridge behind some other items, and he gave her $20 on the understanding that she would return later that evening to return the money and retrieve the jar.

[9] The jar of methadone was not retrieved on the evening of August 6, 2010 as had been anticipated.

[10] On Saturday, August 7, 2010, the Applicant still had not retrieved the jar when Mr. Trudeau travelled to Manitowaning to buy 30 Budweiser and a bottle of rye whiskey. He went to the residence of Leslie Trudeau where together they drank most everything except about one quarter of the whiskey. After consuming the alcohol they returned to Mr. Trudeau’s residence. Mr. Trudeau was very intoxicated and could not remember much about the evening. He recalls sitting on his couch and speaking with Ms. Trudeau. He next recalls waking up in bed to Ms. Trudeau vomiting and having difficulty breathing. He did his best to assist her and emergency personnel were contacted. Unfortunately, Ms. Trudeau was pronounced dead upon arrival at the Mindemoya Hospital. The cause of death was determined to be acute methadone intoxication. The empty jar was found near the bed.

The Applicable Law

Review of a Preliminary Hearing Judge’s Committal for Trial

[11] An accused is to be committed to stand trial for an offence only where a preliminary enquiry judge has found there is some evidence of each of the essential elements of the offence, which, if believed by a properly instructed jury, could result in a conviction. The preliminary hearing judge is not to assess the credibility of witnesses or weigh competing inferences in determining whether there is sufficient evidence for committal [see R. v. Skogman (1984), 1984 22 (SCC), 13 C.C.C. (3d) 161 (S.C.C.)].

[12] Where the Crown’s case includes circumstantial evidence, the preliminary hearing judge must engage in a limited weighing of the whole of the evidence in order to determine whether the elements of an offence which have not been proven by direct evidence may reasonably be inferred from the circumstantial evidence. This is necessary because with circumstantial evidence there is an inferential gap between the evidence adduced and the fact to be established. The judge must be satisfied the evidence is rationally capable of supporting the inferences the Crown seeks to have drawn from it. Although it is for the jury to ultimately determine if the inferences should actually be drawn, it is for the preliminary hearing judge to determine if the inferences which are alleged may legitimately be drawn. Where the circumstantial evidence is equivocal, one cannot leap the “inferential gap” to a finding of culpability and an order to stand trial must not be made. [See R. v. Arcuri, (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.)].

[13] In the event a preliminary hearing judge commits an accused to stand trial where there is no evidence to support an essential element of the offence charged, the error is jurisdictional and reviewable by way of certiorari. Similarly, when the Crown seeks to prove an essential element via circumstantial evidence, if there is no evidence from which the required inference can be reasonably and logically drawn, a judge committing an accused for trial will have exceeded his or her jurisdiction.

The Essential Elements of the Offences Charged

[14] The two counts in the indictment that are of concern read as follows:

That she, on or about the 6th day of August, 2010 at the Reserve of Wikwemikong in the said region in the Province of Ontario, unlawfully did by criminal negligence, to wit, trafficked in a controlled substance (Methadone) included in the schedule I of the Controlled Drugs and Substance Act, cause the death of Leslie Trudeau contrary to section 220 of the Criminal Code of Canada;
That she, on or about the 8th day of August, 2010 at the Reserve of Wikwemikong in the said region in the Province of Ontario, did unlawfully kill Leslie Trudeau, contrary to section 236(b) of the Criminal Code of Canada.

[15] Because the Crown has not specified in count 2 whether the manslaughter alleged was caused by means of an unlawful act under section 222(5)(a) of the Criminal Code, or by criminal negligence under section 222(5)(b) it is entitled to proceed on either basis [See R. v. Thatcher, 1987 53 (SCC), [1987] 1 S.C.R. 652 (S.C.C.), R. v. McCune (1998), 1998 15035 (BC CA), 131 C.C.C. (3d) 152 (B.C.C.A.), and R. v. T.(K.) (2005), 2005 MBCA 78, 199 C.C.C. (3d) 551 (Man. C.A.)].

[16] In the case of R. v. Creighton 1993 61 (SCC), [1993] S.C.J. No. 91, the Supreme Court of Canada defined the elements for unlawful act manslaughter and criminal negligence manslaughter as follows:

The actus reus of unlawful act manslaughter is the actus reus of the predicate offence (the unlawful act);
The mens rea of unlawful act manslaughter is twofold: a) the mens rea of the predicate offence, and b) reasonable foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act;
The actus reus of criminal negligence manslaughter is conduct that constitutes a marked departure from the standards of the reasonable person in all of the circumstances of the case; and
The mens rea of criminal negligence manslaughter is reasonable foreseeability of the risk of bodily harm which is neither trivial nor transitory.

[17] The elements for criminal negligence causing death are the same as for criminal negligence manslaughter.

[18] In addition to these elements, it must be proved that death was caused by the acts or omissions of the accused. Causation is comprised of two elements: factual causation and legal causation. Factual causation requires that “but for” the acts or omissions of the accused, the consequence would not have ensued. Legal Causation involves a value judgment that an accused should be held criminally responsible for the consequences that occurred because the act was sufficiently blameworthy or expressed the requisite element of fault [see R. v. Nette 2001 SCC 78, [2001] S.C.J. No. 75 (S.C.C.)].

The Position of the Applicant

[19] The Applicant contends that the preliminary hearing judge committed jurisdictional error by committing her for trial without evidence of causation or foreseeability, without considering the totality of the evidence on those issues, and by not following binding authority on the issue of causation.

[20] The Applicant submits that for unlawful act manslaughter to apply, the unlawful act must, in the circumstances in which it was committed, be dangerous and likely to injure another person. It is argued that because at the point of trafficking to Mr. Trudeau the substance was never to be consumed, the circumstances under which it was trafficked were not dangerous and were not likely to injure another.

[21] The Applicant further submits there is no evidence of objective foreseeability of the risk of bodily harm in the context of the trafficking alleged because the entire transaction was premised upon non-consumption. It was argued that there was no evidence that a reasonable person trafficking in these circumstances could foresee the risk of bodily harm and any inference to that effect would be illogical and unreasonable.

[22] On the issue of causation, the Applicant submits that because the trafficking was premised upon non-consumption, and the Crown alleges death due to consumption, the Applicant cannot be held responsible in law for the death that occurred. The case of R. v. McAllister [2003] O.J. 6075 (Ont. S.C.) is cited as authority for the premise that voluntary consumption of a drug such as methadone by the deceased severs the chain of causation between the unlawful act and the death of the deceased.

[23] The Applicant further submitted there was no evidence to suggest that her actions showed a wanton or reckless disregard for the lives or safety of other persons because her actions must be considered in the specific context of the trafficking that is alleged, which was premised on non-consumption of the drug.

[24] Lastly, the Applicant submitted that the preliminary inquiry judge failed to provide sufficient reasons on the issues of causation and foreseeability.

The Position of the Crown

[25] The Crown submits that the Applicant’s position is premised on an unduly superficial analysis of the evidence and a misapprehension of the law. In particular, the Crown argued that the Applicant is asking the court to determine what was reasonable based upon what she knew, intended and foresaw as the consequences of her trafficking, and in doing so neglects to address the standard of care to which she was subject and presupposes that her beliefs about the situation were reasonably held.

[26] The Crown’s position is that persons who embark upon inherently dangerous activities, such as handing over a jar of methadone, must make reasonable inquiries and take reasonable precautions to ensure the safety of others. It is alleged that the Applicant’s trafficking, by which the methadone was removed from its lockbox, placed in an unsecure fridge without any inquiry of the likelihood that others might access it, or what steps Mr. Trudeau would take to ensure it would be kept from others, failed to meet the standard of a reasonable person. Examined in this context, the Crown says there was ample evidence adduced at the preliminary hearing to commit the accused for trial on all counts.

Analysis

The Offence of Unlawful Act Manslaughter

[27] The predicate offence alleged in this instance is trafficking in methadone. The allegation of trafficking was Ms. Pheasant giving the methadone to Mr. Trudeau and is not challenged at this stage of the proceedings. The circumstances of the predicate offence, summarized by the Applicant and upon which there was evidence at the preliminary inquiry, are essentially as follows:

He gave the methadone to Mr. Trudeau in order to ensure that she would come back and repay a $20 loan;
She warned Mr. Trudeau about the potential harmful effects of consumption, including death;
Mr. Trudeau was to keep the jar safe until she returned for it;
Mr. Trudeau was not interested in consuming the liquid and never touched the jar;
Mr. Trudeau lived alone and was home alone with her when the jar was handed over;
She hid the jar in the fridge, out of sight, behind a pot of spaghetti and a jug of iced tea;
The jar had her name on it, had a child proof lid, and was marked “methadone”.
Ms. Trudeau voluntarily consumed the methadone.

[28] However, the following additional circumstances surrounding the predicate offence have been raised by the Crown and are also based upon the evidence at the preliminary inquiry:

The quantity of methadone involved was likely to be fatal to those who do not have a tolerance to opiates;
Due to its lethal nature, the dispensation of methadone is strictly controlled with carry home doses released to patients only in a locked box, in which it is to be kept until consumed;
Methadone is easily consumed by drinking and was mixed with water and flavouring so that it resembled juice.
Ms. Pheasant gave Mr. Trudeau the methadone in its plastic container, absent the locked box.
She failed to retrieve the methadone from Mr. Trudeau as anticipated;
Mr. Trudeau’s fridge was unsecure.
She made no inquiries of Mr. Trudeau into the likelihood that others would access it or the steps, if any, Mr. Trudeau would take to keep the methadone away from others.

[29] Although the Crown also argued that methadone is a coveted street drug, there was no admissible evidence of that led at the preliminary inquiry, nor is it a fact of which I may take judicial notice.

[30] The essential elements to be made out in this case are as follows: (a) That Ms. Pheasant trafficked in methadone; (b) that trafficking in methadone in the circumstances was a dangerous act; and (c) that a reasonable person who trafficked methadone to another in these circumstances would have foreseen a risk of bodily harm to another, which is neither trivial nor transitory.

[31] It is conceded there was evidence of trafficking of methadone at the preliminary hearing.

[32] Was the trafficking dangerous in the circumstances? In my view there was evidence led at the preliminary hearing upon which a properly instructed trier of fact could make that finding. Although Ms. Pheasant may have taken adequate steps to ensure the safety of Mr. Trudeau, she failed to consider the danger her actions may pose to persons other than him. In particular, there was evidence that methadone is very dangerous to those without an opiate tolerance and that it should be kept in a locked box until consumed. There was evidence that Ms. Pheasant left it with Mr. Trudeau outside of its locked box, in an unsecure refrigerator, and did not inquire of Mr. Trudeau whether others would have access to the refrigerator. In addition, she made no inquiries of what steps he would take to ensure that no one else consumed it. Regardless of my views of the strength of that evidence, it is sufficient to warrant committal.

[33] The mental or fault element of unlawful act manslaughter requires evidence of objective foreseeability of the risk of bodily harm, which is neither trivial nor transitory. It is a common sense inference which may be drawn from the nature of the unlawful act and the circumstances in which it took place. Can that inference be reasonably and logically drawn in the circumstances of this case? In my view, the same evidence upon which trafficking could be found to be a dangerous act is sufficient to establish a factual basis for this finding. Indeed, it is difficult to envisage a situation in which an unlawful act may be found to be dangerous but for which the risk of bodily harm would not be reasonably foreseeable. Certainly in this case, given the potency of methadone and that it was left unsecured, without inquiry as to how it would be safeguarded, a reasonable person would foresee the risk that it would be consumed by someone and cause bodily harm of more than a trivial or transitory nature. Again, that is not the only inference available on consideration of the facts. It may not even be a likely or probable inference. However, it is an inference that may legitimately be drawn.

[34] On the issue of causation, it was argued that the deceased’s voluntary consumption of the methadone was an intervening act negating both factual and legal causation.

[35] Dealing with legal causation, the Supreme Court of Canada held as follows in R. v. Maybin 2012 SCC 24, [2012] S.C.J. No. 24: “Even in cases where it is alleged that an intervening act has interrupted the chain of legal causation, the causation test articulated in Smithers and confirmed in Nette remains the same: Were the dangerous, unlawful acts of the accused a significant contributing cause of the victim’s death?” Once again I am of the view that there is evidence upon which this finding could be made. The dangerousness of Ms. Pheasant’s trafficking rests with her failing to secure the methadone, failing to determine whether others would have access to the methadone and failing to determine the steps Mr. Trudeau would take to ensure it would not be consumed if accessed. This created an unacceptable risk that someone might consume the methadone and be harmed by it. That someone might then access the methadone, consume it and suffer bodily harm as a result cannot be an intervening act capable of negating causation when it was the realization of the very risk created by the accused.

[36] On the issue of factual causation, counsel for the accused cited the case of MacAllister, supra, for the proposition that voluntary consumption of a drug by the deceased severs the chain of causation between the unlawful act and the death of the deceased. Although that finding was made in MacAllister, and there may be other factual circumstances in which voluntary consumption of a drug may sever the chain of causation, I would not accept this as a general principle. In Maybin, The Supreme Court of Canada put the issue of factual causation as follows:

Factual 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, at para. 44). The trier of fact usually asks: “But for” the action(s) of the accused, would the death have occurred? Factual causation is therefore inclusive in scope.

[37] In the case before me, the question becomes: But for Ms. Pheasant trafficking in the methadone, in the circumstances found to exist above, would the death have occurred? Clearly there is sufficient evidence upon which a properly instructed trier of fact would answer that question affirmatively. But for the trafficking in the methadone, it would not have been present at the apartment of Mr. Trudeau, unsecured. But for its unsecured presence in the apartment, it would not have been consumed. But for it being consumed, the death would not have occurred. Ms. Pheasant’s actions form a link in this unbroken chain of factual causation.

[38] In summary, I am satisfied that the evidence led at the preliminary hearing was sufficient to support committal on the charge of unlawful act manslaughter.

The Offence of Criminal Negligence Manslaughter

[39] The same issues relative to the required mental element and causation arise with respect to the offence of criminal negligence manslaughter and are determined in the same manner as above.

[40] The actus reus for this offence, however, differs from unlawful act manslaughter and requires a marked departure from the standards of the reasonable person in the all of the circumstances of the case. I am satisfied that there was evidence led at the preliminary hearing upon which a properly instructed jury could make such a finding. The evidence established that methadone is an exceedingly dangerous drug that can be fatal if consumed by a person who has no tolerance to opiates. It is released from the pharmacy only in strictly controlled situations in which the person receiving the drug acknowledges its danger and undertakes to keep it in the locked box until it is consumed. It stands to reason that a reasonable person in those circumstances would keep the methadone in the locked box or if leaving with another outside of the locked box would inquire to ensure it will be kept safe in his hands. The accused left the methadone unsecured in the refrigerator of Mr. Trudeau without inquiry as to who might have access to the refrigerator and what steps Mr. Trudeau would take to ensure it would not be consumed.

[41] In these circumstances, Ms. Pheasant’s actions could be found to be a marked departure from the standards of the reasonable person.

[42] In my view, the committal on this charge was also warranted.

The Offence of Criminal Negligence Causing Death

[43] The offence of criminal negligence causing death has the same essential elements as criminal negligence manslaughter. For the same reasons given above it is my view that committal on this charge was also appropriate.

Failure to Give Reasons

[44] Although not argued, counsel for the Applicant raised the issue of insufficient reasons in his factum. Specifically, it was suggested that the presiding judge failed to provide an explanation of the evidence relied upon to satisfy the elements of causation and foreseeability.

[45] As determined in R. v. Deschamplain (2005) 2004 SCC 76, 196 C.C.C. (3d) 1 (S.C.C.), a preliminary inquiry judge is not required to render extensive reasons but must demonstrate that he or she met the statutory and mandatory duty to consider the whole of the evidence. Upon review of the transcripts of the arguments made by counsel at the preliminary hearing, the exchanges between counsel and the judge, and the reasons given by him, I am satisfied that he considered the whole of the evidence and thereby met the prescribed standard.

Conclusion

[46] The application by the accused for certiorari is dismissed.

The Honourable Mr. Justice R.D. Gordon

Released: November 19, 2013