ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-0009
DATE: 2013-12-23
BETWEEN:
Her Majesty the Queen
– and –
Justin Durdle
Respondent
Joseph Chapman and Stacy Haner, for the Crown
John Saftic and Sharon Sabourin, for the Respondent
HEARD: December 10, 11, 12 and 18, 2013 in Gore Bay, ON
REASONS FOR JUDGMENT
Del Frate j.:
Background
[1] Justin Durdle (“the accused”) pled guilty to one count of criminal negligence causing death and one count of trafficking in drugs.
[2] The facts in support of this plea are as follows. On March 14, 2012, the accused and a number of his friends including Shelley Eadie (“the deceased”) were at the accused’s residence. The accused had in his possession Kadium 100 capsules. During the course of the evening, he broke open the capsules, crushed them on a saucer such that he could ingest them himself. He then left a quantity of the drug available on the saucer in such a way that anyone else in attendance at the party could consume it. The deceased did in fact consume the drug and subsequently died from an overdose of morphine. These facts were accepted by the Crown and the defense and in my view, the essential elements of both offenses have been met.
[3] A Gardiner hearing was held to determine whether there were aggravating or mitigating factors for the purposes of the sentencing. At this hearing, both parties called evidence to substantiate their respective positions.
Discussion
[4] Pursuant to section 724(3)(e) of the Criminal Code of Canada, the Crown must prove the alleged aggravating facts beyond a reasonable doubt. The defence must prove the mitigating facts on a balance of probabilities: see section 724(3)(d).
[5] If the parties meet their respective onuses, such evidence can be relied upon for sentencing purposes.
[6] Numerous witnesses were called at this proceeding. All of them except for Evan Middaugh, Detective Constable Hart, Cody Crawford, and Jeff Bailey, where described as either drunk or intoxicated by the use of drugs and alcohol when the incident occurred. Their recollection was spotty and contradictory on certain issues.
[7] With regard to the accused and Chantal Lavoie, their lack of recollection was compounded by brain injuries sustained in a motor vehicle accident.
[8] A summary of the collective testimony of all witnesses would indicate that on March 14, 2012, the deceased, Shelley Eadie, Candace Sellen, Evan Middaugh, the accused, and Chantal Lavoie were at the Durdle residence from approximately four o’clock to 4:30 p.m. At least one case of beer was brought to the house. As well, 10 or 11 capsules of Kadium 100 were obtained by the accused and at some point they started sniffing the crushed contents of the capsules.
[9] Some witnesses state that the capsules were crushed and ingested in the living room and others say that they were crushed and ingested in the bedroom. Regardless, drugs were available and consumed by all except for Evan Middaugh. At least five or six capsules were crushed at the residence of the accused and another capsule was crushed at the Eadie residence later that evening.
[10] The evidence further discloses that the accused made those capsules available and that at no time did he deny any of his guests the opportunity to ingest these drugs. Candace Sellen testified that the accused gave her mother, the deceased, five capsules from which she sniffed one and put the other four in her purse. There was no evidence of these other four capsules being found anywhere. The accused on the other hand specifically denies that he at any time gave the deceased these capsules or any of the contents of the capsules that were consumed either in the living room or in the bedroom.
[11] I do not accept the accused’s evidence that he did not crush the contents of the capsules and offer them to the others. This evidence is in direct contradiction to the evidence of Evan Middaugh who emphatically stated that he saw the accused crush the contents and offer them to others at the Eadie residence. Evan was not under the influence of any intoxicants and I accept his testimony.
[12] The evidence also discloses that beer was being consumed and that the deceased was intoxicated by the time they left the Durdle residence through the ingestion of alcohol and drugs. Both of these ingredients were furnished by the accused.
[13] It is also accepted that the deceased was a long time abuser of drugs and alcohol and that the accused was aware of her addictions and that both had sniffed drugs in the past.
[14] Lastly, I find that Shelley Eadie died as a result of a codeine drug overdose.
[15] As is stated in the facts read in, the drugs were made available by the accused. I do not accept his testimony that he never gave the drugs directly to the deceased. I find that he made the drugs available and that he knew that the deceased and others were ingesting those drugs. I also find that under those circumstances he did nothing to prevent the consumption of these drugs at any time. This makes him as responsible as if he had given the drugs directly to the deceased or anyone else.
[16] The accused’s conduct resulted in the death of Shelley Eadie. When one considers the accused’s knowledge of the deceased’s addictions to drugs and alcohol, one would have expected a different approach from the accused especially when he testified that he had a close relationship with the deceased.
[17] As a result, I find that the Crown has proven beyond a reasonable doubt that these circumstances constitute an aggravating factor to be considered at the sentencing hearing.
The Honourable Mr. Justice Robert G.S. Del Frate
Released: December 23, 2013
COURT FILE NO.: CR-13-0009
DATE: 2013-12-23
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Justin James Durdle
REASONS FOR JUDGMENT
Del Frate J.
Released: December 23, 2013