BARRIE COURT FILE AND PARTIES

BARRIE COURT FILE NO.: CR-12-096
DATE: 20130204

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN

AND:

AMANDA GILES

BEFORE: THE HON. MADAM JUSTICE M.P. EBERHARD

COUNSEL:
K. Hull, Counsel, for the Respondent Crown (Responding Party)
J. Hechter, Counsel, for the Applicant Accused (Moving Party)

HEARD: February 4, 2013

ENDORSEMENT

[1] The Applicant applies in the nature of certiorari to quash the committal to stand trial on the charge of administering a noxious substance. CC 245(a)

[2] The Applicant concedes committal on other counts relating to the same incident: did aid or abet to commit suicide, CC 241(b); did unlawfully traffic in a controlled substance, to wit: cocaine, CDSA 5(1); unlawfully traffic in a controlled substance, to wit: oxycodone, CDSA 5(1); unlawfully traffic in a controlled substance, to wit dilaudid also known as morphine, CDSA 5(1).

[3] The bare facts relevant to this determination are that the complainant had formed the intention to commit suicide before the Applicant arrived, the Applicant brought drugs with her to ingest with the complainant at the complainant’s request; they injected dilaudid and did crack cocaine together. At the request of the complainant, the Applicant prepared a syringe of drugs to facilitate the express intention of the complainant to commit suicide with it. The Applicant left before this syringe was used by the complainant.

[4] My only mandate on this Application is to determine whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty.[^1] A scintilla of evidence will do.[^2]

[5] The determination turns on whether facilitating the known intention of the complainant to commit suicide by preparing the drug cocktail in a syringe ready for use could constitute “administering”.

[6] The Crown relies on R. v C.W. 2006 11225 (ON CA), [2006] O.J. No. 1392 where the Court of Appeal stated:

6 We do not accept this argument. The trial judge found that the appellant made the drugs available in large quantities to his guests, including A.R., and that he facilitated, encouraged, welcomed and promoted their use; he showed A.R. and her friends how a more intoxicating effect could be obtained by crushing the pills and removing the time-release coating, and when the girls said they were not feeling "high", he supplied them with more drugs with the added potency factor of peeling and crushing. The trial judge specifically found that "the accused invited A.R. to take dangerous drugs and facilitated her ingesting them in a form most lethal, thus placing her in a confused and vulnerable state and then, whether she continued consumption on her own or with S.H., took no steps to shut her down." He found that the appellant's actions contributed substantially to A.R.'s death.

7 There was ample evidence to support these findings and they fully support the finding of guilt on the charge of manslaughter. The drugs ingested by A.R. all came from the appellant's supply - as the Crown notes, he had a virtual pharmacopoeia of drugs on his kitchen counter - and were taken with his permission and, indeed, encouragement, even if he happened not to be present on some occasions when the drugs were consumed. The evidence is that the appellant was present on numerous other occasions when A.R. was consuming the drugs. Accordingly, the trial judge's finding of manslaughter arising from the unlawful act of trafficking in drugs was perfectly justified in the circumstances.

[7] The Applicant responds that this case was an instance where the court did not find an intervening cause in the possibility that the deceased girl ingested more drugs that he did not prepare, supply and encourage her to take. More compelling is the distinction that the deceased girl did not have, as the complainant did in the present case, a pre-existing intention to commit suicide. The largess of an adult supplier of drugs to an inexperienced teen who takes too much and experiences an unintended death is quite different than a facilitator of an intention to take the drugs to commit suicide.

[8] I warned counsel I would go outside the case law they provided as I thought it likely there might be guidance on this issue in case law around assisted suicide. In pursuit of this guidance I came upon a discussion in the literature[^3]:

To found a conviction under this section, the accused must administer the poison or noxious substance or in some way cause the victim to take it. Administering thus requires an active involvement. A doctor cannot be said to administer a substance when they merely provide a person with a prescription.[^4] What actions will amount to causing a person to take the substance remains unclear, but indirect transmission likely qualifies. For example, the wording undoubtedly covers a situation where a person disguises poison as food or drink. And the victim “administers” it themselves. However, it would not include a situation where the person merely provides the noxious substance, and the victim — with full knowledge of what it is — makes a free and informed choice to ingest it.”[^5]

15
Section 246(b) of the Criminal Code reads as follows:

Everyone who, with intent to enable or assist himself or another person to commit an indictable offence

(b) administers or causes to be administered to any person, or attempts to administer to any person, or causes or attempts to cause any person to take a stupefying or overpowering drug, matter or thing, is guilty of an indictable offence.

16 In the case of R. v. Tan (1984), 1984 2418 (SK CA), 15 C.C.C. (3d) 303 at 307, the Saskatchewan Court of Appeal was of the view that "a narcotic is not 'administered' until it enters the intended recipient's system parenterally or otherwise". See also R. v. Eccleston (1975), 1975 1443 (BC CA), 24 C.C.C. (2d) 564 (B.C. C.A.); R. v. Verma (1996), 1996 606 (ON CA), 112 C.C.C. (3d) 155 (Ont. C.A.), R. v. Burkholder (1977), 1977 ALTASCAD 8, 34 C.C.C. (2d) 214 (Alta. C.A.) and R. v. Ssenyonga (1992), 1992 12784 (ON CJ), 73 C.C.C. (3d) 216 (Ont. Ct. Prov. Div.). These cases all support the proposition that in order to administer a substance, the accused has to cause the substance to enter the complainant's system. Tan and Verma involve doctors writing prescriptions, which was found not to be administering. Ssenyonga involved an HIV positive man having unprotected sex with a woman. There, it is clear that the substance in question entered the complainant's system as a "cause and effect" result of the actions of the accused. Similarly, Burkholder involved a man who had injected novocaine into the complainant via hypodermic needle.

17 R. v. Rousseau (1991), 1991 3345 (QC CA), 70 C.C.C. (3d) 445 (Que. C.A.), leave to appeal to Supreme Court refused 70 C.C.C. (3d) vi, dealt with a situation in which a doctor was selling prescriptions. At trial he was acquitted. At the Court of Appeal, Justice Dube found that the term "administer" could include a physician writing a prescription. Justice Beauregard agreed with Justice Dube but seemed to base it on the "sell" branch of trafficking. Justice McCarthy dissented. The Court relies heavily on the other words that surround "administer" in the definition of trafficking. The words "administer" and "sell" are used as a vehicle to obtain that result. In contrast, s. 246(b) does not include a list of other related words. As well, the Rousseau case relates to a doctor writing and selling prescriptions within the context of a charge of trafficking in narcotics which is a very different factual circumstance than the one before me.

18 In the final analysis, there are no cases to support the proposition that giving someone drugs and being present while they ingest the drugs, constitutes "administering". In my view, administer implies that the accused caused the substance to go into the complainant's system. If an accused simply gives the drugs to the complainant and the complainant then ingests them of his or her own free will, the accused cannot be said to have administered the substance.

[9] The cases about assisted suicide tend to be sentencing cases after guilty plea for aiding and abetting.[^6] In each, the accused was the active agent of the event that killed.

[10] The preliminary hearing Judge found that the Applicant’s acts, injecting the complainant the first time and letting the complainant observe thereby how it was done were preparatory. Neither counsel now argue that the first injection was part of a chain of causation. Rather, it is common ground that the Applicant came at the complainant’s request, brought drugs and did drugs together at the complainant’s request and filled the syringe at the Plaintiff’s request.

[11] The facilitation of the complainant’s intention may be many things, indeed constitute the elements of other offences, but I am not persuaded that it provides a scintilla of evidence of administering. It just doesn’t fit the definition.

[12] For this reason, certiorari lies. The committal for trial on the count of administering a noxious substance is set aside.

EBERHARD J.

Date: February 4, 2013

[^1]: R. v Sheppard 1976 Carswell Nat at 1(SCC) para 8
[^2]: R. v Coke 1996 CarswellOnt 696 (G.D.) at para 9.
[^3]: Criminal Law 4th ed. Manning Mewett & Sankoff Lexis Nexis page
[^4]: R. v Verma 1996 606 (ON CA), [1996] O.J. No. 4418
[^5]: United States of America v Saad [2003] O.J. No. 1655 at para 16
[^6]: R. v. Kirk, [2006] O.J. No. 5292