A. OVERVIEW

[1] The Applicant Maxwell Johnson (hereinafter Johnson) is charged with eight criminal offences in an Indictment that is awaiting trial in this Court. He brought a certiorari Application seeking to quash committals for three of the offences in the Indictment.

[2] A lengthy preliminary inquiry was held before Horkins J. in September 2016. On October 12, 2016, Johnson was committed for trial on the eight offences that are set out in the Indictment. He was discharged on one additional count. The committals for five of the offences are not challenged, namely, possession of heroin, cocaine and marijuana for the purpose of trafficking, possession of proceeds of crime, and trafficking in cocaine. The remaining three committals that are challenged are for the most serious offences, namely, manslaughter, criminal negligence causing death, and criminal negligence causing bodily harm.

[3] The certiorari Application was brought in a timely way and it did not prevent Johnson from setting a trial date. Accordingly, there is no suggestion that certiorari should be denied, as a matter of discretion, because of delay. I heard full argument of the Application on February 13, 2017 and reserved judgment. These are my Reasons for Judgment.

B. FACTS

[4] The facts of the case revolve around two young women, Alyshia Arbour and Tatyana Singh, who spent the night of January 29/30, 2014 in downtown Toronto. They were working as hostesses at a club. When their work was finished, they proceeded to various after-parties. They consumed both alcohol and cocaine throughout the relevant evening and nighttime events. In the early morning hours, they ended up at the accused Johnson’s condominium where the final after-party took place. There were three men and three women present. The two young women, Ms. Arbour and Ms. Singh, were intent on consuming more cocaine. Johnson provided them with what they apparently believed was cocaine. It can be inferred that what Johnson actually provided was either heroin or, at best, was cocaine that had been cut with heroin. The two young women had no prior experience consuming heroin and had not developed any tolerance for it. They took the drug through the nose. Ms. Arbour died after consuming the drug and Ms. Singh went into a coma from which she eventually recovered. The cause of Ms. Arbour’s death was a combination of alcohol and heroin toxity. Her blood alcohol concentration was the equivalent of 130 and there was a “significant amount” of opiods in her body.

[5] A search of Johnson’s condominium revealed marijuana, cocaine, and heroin, as well as a set of scales with white residue on the scales. In addition, Johnson had attempted to remove a black bag containing $54,830 from his condominium, after he had called 911 and after EMS personnel had arrived at the condominium and were attending to the two young women. Finally, traces of heroin were found on two glasses in the kitchen. One of the glasses could be connected to Ms. Singh.

[6] I need not review the evidence called at the preliminary inquiry in any detail, as the issues relating to the certiorari Application are relatively narrow. Horkins J. summarized the evidence as follows, and I adopt his summary:

The factual context here is that these events arise out of, I guess we would call it, the club scene in downtown Toronto. It is described in the evidence that there are different venues [that] operate as nightclubs. In order to attract customers, these venues hire, apparently through third party promotional operators, attractive women to act as hostesses, or I think as one of the witnesses described herself, as “party girls.” It is clear that these young women are paid to attend the venue, mingle with customers and encourage them to enjoy themselves. And, of course, this is … designed to encourage the sale of alcohol through the purchase of bottles to be shared at different tables. These venues operate into the early morning hours. And following the closing of the particular venues, the evidence is that it is not at all unusual for those in the industry to gather at after-parties. In fact, it would appear that after-party has become a verb in this community of people. And these after-parties, apparently, continue deep into the early morning hours.

So this is the scene I think, as it was referred to, that provides the context in which the very sad and tragic death of Alyshia Arbour took place as well as the drug overdose of Tatyana Singh.

So, on the date in question, the evidence [is] that Ms. Arbour and Ms. Singh were acting as these hostesses working for a business called Kleen Media. The venue was a place called Brassaii. That event commenced about 10:30 in the evening. At about 2:00 in the morning, they left that venue, went to a second event venue EFS, those initials apparently standing for Everything For Sale. They arrive at that venue just after 2:00 in the morning and, apparently, left rather quickly to go from there to an after-party at a promoter’s home, which again they left rather quickly and travelled to the condominium of the accused.

It is clear that through the course of the evening, prior to arriving at the accused’s condominium, both women had consumed a significant quantity of alcohol and cocaine. It would also seem clear that the reason that they travelled to the accused’s condominium was in the expectation of further cocaine. That group consists of three women and three men.

Shortly after arriving at the Johnson condominium, there is evidence of Mr. Johnson providing cocaine by taking it from his pocket and putting a quantity of it on his kitchen counter. At some point, he invites Ms. Singh to chop up lines, six or eight lines of cocaine. And just focusing on the alleged victims in this matter, the evidence suggests that Ms. Singh snorted one line of this substance held out to be cocaine, and that the deceased Ms. Arbour snorted a line and a half.

Now, significantly, within a very short period of time the deceased Ms. Arbour is observed to be unconscious on the couch snoring. She is carried from the living room to the accused’s bedroom and placed on his bed. And I will refer to Ms. Singh as the survivor, because the two women, Ms. Arbour is deceased and Ms. Singh survives the drug overdose. Ms. Singh, almost immediately after consuming this cocaine, also felt the effects. And, significantly, these effects were inconsistent with her prior experience with cocaine. She felt off-balance, drowsy, and she has a memory blank for about half an hour I think after ingesting the cocaine. Her phone records were in evidence. It is clear that she was still texting and streaming content to her phone for maybe two hours. And it can be inferred that after that point in time she, too, is asleep. The evidence is that the third woman left much earlier in the chronology; and, also, that sometime between 4:00 and 6:00 in the morning the men also fell asleep.

It is about 8:00 in the morning that the accused awakes, realizes that Ms. Arbour is in considerable distress, she is non-responsive, foaming from the mouth, has no pulse. His condominium is right across the street, virtually, from St. Michael’s Hospital. He runs over there. At about the same time, a 911 call is made. EMS personnel arrive. Ms. Arbour has no vital signs. Ms. Singh is not breathing but has a weak pulse. Ms. Arbour never recovers and is removed from life support a couple of days later. Ms. Singh recovers fully and was a witness at this preliminary hearing.

During the time that the EMS personnel and others were attempting to assist these women, the accused is seen on close circuit TV carrying a small bag down to the underground parking lot, placing it in the trunk of his friend’s car that is parked there. And it would appear from the evidence that this bag contained over $50,000 in cash. As a result of a search warrant executed on the accused’s condominium, a number of items were seized.

In addition, in the course of the medical treatment, blood and urine samples were taken from the women and analyzed. As a result of these seizures and subsequent analysis, there is evidence that both women had not only ingested a significant amount of alcohol but, as well, cocaine and morphine is in their system. There is evidence that the only source of this morphine could have been heroin. The evidence is consistent that neither woman knowingly ingested heroin. So one of the key issues, if not the key issue in the counts, is the question of where did the heroin come from?

One of the items seized from the accused’s residence was a bag found in his kitchen drawer which contained a quantity of heroin. There is no question that on the evidence here, there is an available inference and conclusion that heroin ingestion was a significant contributing cause of both the medical crisis leading to Ms. Singh’s hospitalization and to the death of Ms. Arbour. And on the totality of the evidence, there is an available inference that the heroin was ingested by the two women at the accused’s residence.

In looking at the evidence, there is no direct evidence of anyone knowingly providing heroin to the victims. However, there is an available inference that the cocaine that was ingested, which he provided, was laced with or tainted with heroin. Amongst other things, this arises from the discovery of the heroin in his possession in his kitchen drawer.

C. ANALYSIS

(i) Introduction

[7] As noted previously, the certiorari Application relates only to the two criminal negligence counts and the unlawful act manslaughter count. The parties agreed, both before Horkins J. and in this Court, as to the elements of these somewhat complex offences.

[8] The elements of unlawful act manslaughter are as follows: the accused committed an unlawful act, that is, some underlying or predicate offence; the act was not only unlawful but was objectively dangerous, in the sense that a reasonable person in the accused’s circumstances would foresee that the act likely gave rise to a risk of bodily harm to some other person; and finally, the act caused death in the sense that it contributed significantly to death. See: R. v. Creighton (1993), 1993 CanLII 61 (SCC), 83 C.C.C. (3d) 346 (S.C.C.); R. v. Sarrazin and Jean (2011), 2011 SCC 54, 276 C.C.C. (3d) 210 at paras. 18 and 20 (S.C.C.); R. v. Smithers (1978), 1977 CanLII 7 (SCC), 34 C.C.C. (2d) 427 (S.C.C.).

[9] The elements of criminal negligence causing death (in the case of Ms. Arbour) or criminal negligence causing bodily harm (in the case of Ms. Singh) are as follows: the accused is the person who committed the relevant act (providing a prohibited drug in this case); that act was characterized by wanton or reckless disregard for the lives or safety of others, in the sense of a marked and substantial departure from what a reasonably prudent person would have done in the circumstances; modified objective fault, the mens rea for the offence (which can be inferred from the character of the conduct), namely, that a reasonable person would have foreseen the risk of harm to the lives or safety of others and would have taken steps to avoid it, and that the accused’s failure to do so was due to a marked and substantial departure from the standard of care; and finally, the act caused death (or bodily harm) by significantly contributing to death (or bodily harm). See: R. v. Anderson (1990), 1990 CanLII 128 (SCC), 53 C.C.C. (3d) 481 (S.C.C.); R. v. J.L. (2006), 2006 CanLII 805 (ON CA), 204 C.C.C. (3d) 324 at paras. 14-18 (Ont. C.A.); R. v. M.R. (2011), 2011 ONCA 190, 275 C.C.C. (3d) 45 at paras. 25-31 (Ont. C.A.); R. v. Roy (2012), 2012 SCC 26, 281 C.C.C. (3d) 433 at paras. 36-42 (S.C.C.); R. v. Willock (2006), 2006 CanLII 20679 (ON CA), 210 C.C.C. (3d) 60 at paras. 29 and 40 (Ont. C.A.).

[10] The Applicant raised two main issues, both before Horkins J. and in this Court, in relation to the three impugned counts alleging criminal negligence and manslaughter. First, in relation to unlawful act manslaughter, it was submitted that the underlying unlawful act alleged by the Crown was trafficking in heroin and that there was no evidence that Johnson had the mens rea for this particular predicate offence. Second, it was submitted that there was no evidence of the modified objective fault element for both unlawful act manslaughter and for criminal negligence, namely, reasonable foresight of the risk of bodily harm or reasonable foresight in relation to the risk of harm to the lives or safety of others. This second submission depended substantially on the same premise as the first submission, namely, that Johnson believed he was providing cocaine to the two women, as they had requested, and not heroin. In that regard, it was submitted that cocaine is a less dangerous drug than heroin.

[11] The Applicant relied on the fact that Horkins J. discharged Johnson on a separate count of trafficking heroin, apparently on the basis that there was insufficient evidence proving knowledge that the drug he provided to the two women was heroin. Horkins J. framed the issue in relation to the manslaughter and criminal negligence counts in similar terms, focusing on whether there was evidence that Johnson knew the specific drug contained heroin. He stated the following:

The major contested issue, isolated by the facts put forward at the preliminary hearing, is whether there is a sufficient basis to commit the accused for trial on the criminal negligence cause death and/or an unlawful act manslaughter charge in the absence of evidence that he knowingly provided heroin to the victims.

And one of the submissions made with respect to that was that the underlying offence articulated in the information, trafficking in heroin, would require knowledge of the substance being heroin, and I agree with that, and that might prevent the committal on that count as drafted. [Emphasis added.]

[12] Horkins J. must have accepted the Applicant Johnson’s argument to the effect that there was insufficient evidence to prove that he had knowledge that the drug provided to the two women contained heroin. As noted, Horkins J. discharged the Applicant on a separate count of trafficking heroin. Furthermore, when he committed the Applicant on the criminal negligence and manslaughter counts, he relied on his powers pursuant to s. 548(1) of the Criminal Code, to commit the accused for an offence “in respect of the same transaction” and not for an offence as charged. The Crown had pleaded the two criminal negligence counts in a way that particularized the means as follows: “by trafficking in heroin.” Similarly, the Crown sought committal for manslaughter on the basis that “the provision of the heroin … constitutes an unlawful act, a trafficking in heroin.” Horkins J. refused to commit the Applicant on this basis, as pleaded or as requested by the Crown. Instead, he committed the Applicant on counts of both criminal negligence and manslaughter after he amended the pleadings to allege the unlawful means in a different way, namely, by “trafficking the drugs cocaine and/or heroin.”

[13] It is unfortunate that the parties did not provide Horkins J. with the leading authorities concerning the mens rea for the offence of trafficking. Counsel for the Applicant had submitted as follows, without citing any authority, when addressing the offence of unlawful act manslaughter:

… what is an issue is the other part of the mens rea which is that there needs to be an intention to commit the underlying unlawful act. And, as my friend has explained it, that unlawful act is the trafficking in heroin. And that’s really what we’ve got to look at here. And it’s our position that there is no evidence on that essential element, that there was an intention to traffic heroin to Ms. Singh - or, pardon me, to Ms. Comtois-Arbour.

There still has to be evidence on each of the essential elements, and the intention to commit the underlying unlawful act is a key element to the offence of manslaughter here.

So where is the evidence that Mr. Johnson knew that it was heroin and that he intentionally gave them heroin? I think that is the key here when we’re talking about committal.

Obviously, Your Honour is aware that speculation at this point is impermissible. And it’s our position that saying that Mr. Johnson intended to traffic heroin is an impermissible speculation, if we’re looking at the mens rea component. [Emphasis added.]

[14] Crown counsel (who was not Ms. Mandel) never challenged this legal proposition, that an intent “to traffic heroin” had to be proved. He simply submitted that there was an available inference that the Applicant knew the drug provided to the two women contained heroin, based on all the circumstances.

[15] When counsel for the Applicant addressed the mens rea for criminal negligence, she continued to rely on the need to prove “the intention of providing that heroin” and submitted that “it’s our position with respect to this mens rea, the intention to traffic … that’s missing.” Horkins J. repeatedly challenged this position and asked the following pertinent questions:

So, help me with this. If there’s some evidence for a jury to consider, some evidence that he’s the source of the lines on the counter, does there also have to be evidence that he knew there was heroin in that, … or just that he’s providing an illegal drug that causes the death?

Just go back to my concern … it’s that the evidence, if you take it in its totality, is that street drugs are inherently dangerous because you don’t know what’s in them. So if you’re intentionally providing some significant street drug, cocaine, everybody knows that you don’t know what’s in it. And so if you provide that to someone, you’re providing an inherently dangerous substance and it kills them. That’s criminally negligent.

[16] Counsel for the Applicant responded by relying on the way that the Crown had particularized the count of criminal negligence:

The Crown has particularized it as heroin on the Information. So it’s not sufficient to say there’s evidence that Mr. Johnson provided these girls with cocaine, therefore, he is guilty of criminal negligence based on heroin toxicity … given the way it’s been particularized, there still has to be some evidence of an intention to actually traffic in the heroin, not in the cocaine, based on the way that it’s particularized and based on the effects of the heroin. [Emphasis added.]

As noted previously, Horkins J. responded to this submission by committing the Applicant on amended and broader particulars, rather than on the offence as charged.

(ii) The first issue: the mens rea for the unlawful act element of manslaughter

[17] Ms. Martin’s starting legal premise, on behalf of the Applicant, is that the Crown must prove the mens rea for the underlying or predicate offence, in relation to the offence of unlawful act manslaughter. This submission is undoubtedly correct in law. See: R. v. De Sousa (1992), 1992 CanLII 80 (SCC), 76 C.C.C. (3d) 124 at 134-7 (S.C.C.); R. v. Creighton, supra at 371-3. However, the further submission, that an intention to traffic in a specific drug is required in order to prove the underlying or predicate offence of trafficking, is not correct. There is a long line of binding authority addressing this issue. It has consistently been held that an accused’s honest belief that some other illegal drug was being trafficked, and not the drug alleged and proved to have been trafficked, is no defence.

[18] The earliest authoritative pronouncement on this point was in R. v. Burgess, 1969 CanLII 467 (ON CA), [1970] 3 C.C.C. 268 at 269-70 (Ont. C.A.). The accused was charged in an Information that pleaded the offence of “possession of a narcotic, to wit: opium, contrary to s. 3(1) of the Narcotic Control Act.” His defence was that he honestly believed the drug was hashish, which was also prohibited under the same provision of the same Act. Brooke J.A. gave the judgment of the Court and stated:

My brothers and I are all of the opinion that in these circumstances, where the evidence is clear and consistent only with the conclusion that the accused knew the substance that he had in his possession was indeed a drug the possession of which was contrary to the statute, the fact that he mistakenly believed the drug to be hashish rather than opium is of no moment. [Emphasis added.]

[19] One year later, in R. v. Blondin (1970), 1970 CanLII 1006 (BC CA), 2 C.C.C. (2d) 118 (B.C.C.A.), the British Columbia Court of Appeal reached the same conclusion. The Indictment pleaded the offence of importing “a narcotic, to wit: cannabis resin.” The trial judge instructed the jury that the Crown had to prove that the accused knew that the substance hidden in a closed container was the specific narcotic cannabis resin, as pleaded. On a Crown appeal from the resulting acquittal, the Court of Appeal unanimously held that the instruction was erroneous. McFarlane J.A. stated that “the jury should have been instructed that the onus on the Crown was to prove beyond a reasonable doubt that the respondent knew the substance was a narcotic, although not necessarily cannabis resin.” On further appeal, the Supreme Court unanimously agreed with the British Columbia Court of Appeal. See: R. v. Blondin (1971), 1971 CanLII 1411 (SCC), 4 C.C.C. (2d) 566 (S.C.C.).

[20] The Ontario Court of Appeal and the Supreme Court revisited the issue a number of years later and reached the same result. In R. v. Aiello (1978), 1978 CanLII 2374 (ON CA), 38 C.C.C. (2d) 485 (Ont. C.A.), the Indictment charged possession of “a narcotic, to wit: diacetylmorphine (heroin)” for the purpose of trafficking. The trial judge charged the jury that the Crown had to prove that the accused knew the packaged substance that he was transporting was heroin. On a Crown appeal from the resulting acquittal, Martin J.A. stated the following:

We are all of the view that the learned trial Judge fell into a serious error in instructing the jury that the Crown, in order to establish possession, was required to prove beyond a reasonable doubt that the respondent knew that the package contained heroin.

In our view, the trial Judge should have directed the jury that if they were satisfied beyond a reasonable doubt that the respondent assumed control of the package, knowing that it contained a drug, the trafficking in which was prohibited, or was wilfully blind to it being such a drug or was reckless as to whether it was such a prohibited drug, then the knowledge necessary to constitute the offence was established.

On further appeal, the Supreme Court unanimously agreed with Martin J.A. See: R. v. Aiello (1979), 1979 CanLII 31 (SCC), 46 C.C.C. (2d) 128 (S.C.C.).

[21] Burgess, Blondin, and Aiello all dealt with charges relating to “a narcotic,” prohibited under the old Narcotic Control Act, where the accused’s alleged mistake was as to which particular “narcotic” he had possessed, imported, or trafficked. Johnson’s alleged mistake in the case at bar is similar, because heroin and cocaine are both Schedule I substances and both are prohibited under s. 5 of the Controlled Drugs and Substances Act. It is, therefore, unnecessary to address the more controversial and much criticized decision in R. v. Kundeus (1975), 1975 CanLII 161 (SCC), 24 C.C.C. (2d) 276 (S.C.C.), which was decided after Burgess and Blondin and before Aiello. In that case, the Court went even further than in the other three cases and upheld a conviction where the accused had trafficked in LSD, but had apparently believed that the drug which he had sold to an undercover officer was mescaline. These two drugs were not prohibited or restricted at the time under the same statutory schedule and they were regulated quite differently. It is noteworthy that Laskin C.J.C.’s dissent in R. v. Kundeus, supra at 283-4, which forcefully disagreed with the majority, continued to hold that the two earlier cases of Burgess and Blondin were correctly decided because the actual drug, and the accused’s mistaken belief concerning a different drug, were “both drugs being in the class of narcotics and caught by the same penal provision, namely s. 3 of the Narcotic Control Act,” such that “the same offence is involved regardless of the narcotic.” Also see: R. v. Williams (2009), 2009 ONCA 342, 244 C.C.C. (3d) 138 at paras. 19-23 (Ont. C.A.); Don Stuart, Canadian Criminal Law, 6^th Ed. (2011 Thomson Reuters) at pp. 341-354; MacFarlane et al., Drug Offences in Canada, 4^th Ed. (2015 Thomson Reuters) at pp. 29-1 to 29-15.

[22] In light of the above authorities, I am of the view that Horkins J. erred in discharging Johnson on the separate count of trafficking heroin. Johnson’s asserted belief that the drug he provided to the two women was cocaine, as set out in his statement to the police, was legally irrelevant because trafficking in either heroin or cocaine is equally prohibited under s. 5 of the C.D.S.A. Similarly, there would be no impediment on these facts to pleading “trafficking in heroin” as the underlying or predicate offence for the count of unlawful act manslaughter, at least for purposes of committal. However, there is considerable wisdom in the broader form of pleading adopted by Horkins J., particularizing the unlawful act as “trafficking the drugs cocaine and/or heroin,” or simply as “trafficking in a controlled substance, to wit: cocaine and/or heroin.” This broader form of pleading is arguably preferable, from the Crown’s perspective, because a narrowly particularized pleading of “trafficking in heroin” might permit the defence to be conducted in such a way, at trial, that relied on the particulars pleaded to the accused’s prejudice and thereby required the Crown to prove the particulars. See: R. v. Morozuk (1986), 1986 CanLII 72 (SCC), 24 C.C.C. (3d) 257 at 261-2 (S.C.C.); R. v. Saunders (1990), 1990 CanLII 1131 (SCC), 56 C.C.C. (3d) 220 (S.C.C.).

[23] I note that the Crown has perhaps avoided all of the above difficulties, in the Indictment that is presently before this Court, by simply pleading that Johnson “did unlawfully kill” Ms. Arbour, in Count One alleging the offence of manslaughter.

[24] Horkins J.’s error, in requiring proof of an intent to specifically traffic in heroin and in discharging Johnson on the separate count of trafficking in heroin, is obviously an error that enured to Johnson’s benefit. It caused him no substantial wrong and cannot assist on this certiorari Application. See R. v. Papadopoulos et al. (2005), 2005 CanLII 8662 (ON CA), 201 C.C.C. (3d) 363 (Ont. C.A.). In my view, Horkins J. did not err in committing the Applicant for trial on a count of unlawful act manslaughter on the basis that he trafficked “the drugs cocaine and/or heroin” to the deceased.

(iii) The second issue: the modified objective fault element

[25] When faced with the above line of authority, in the course of oral argument, Ms. Martin did not press the first issue concerning insufficient evidence as to the mens rea for trafficking heroin, assuming that was the predicate offence for unlawful act manslaughter. Instead, she focused her argument on the second issue, namely, whether there was sufficient evidence of the further mens rea requirement concerning objective foresight of bodily harm, as it applies both in the law of unlawful act manslaughter and in the law of criminal negligence.

[26] Horkins J. was satisfied that there was sufficient evidence in relation to these elements. He reasoned as follows:

It is in evidence before me and would be a matter of relative common sense that one of the significant dangers of consuming street drugs is that one never knows what they are getting. Their purity is suspect. It is common for other things to be cut into or laced into street drugs. In fact, the toxicology report in this case seems to indicate that there are things in some of the drugs consumed at some point, including lidocaine and some sort of pesticide. And I would feel fairly safe in assuming that those substances were consumed without any intention of consuming them or any knowledge that they were being consumed.

I am therefore of the view that when someone provides street cocaine to another, they have no way of knowing exactly what they are providing, reasonably ought to know that it may not be pure, that there is an objective foreseeability that the substance may cause some degree of bodily harm. Supplying it is an unlawful act, it is a dangerous act, the risk of harm to the consumer is objectively foreseeable. This is especially so, in my view, when a substantial quantity is provided.

And so all of this or a lot of this is just by way of saying that, in my mind, whether the accused knew that there was heroin in the cocaine, he is responsible for providing this substance. And it was a dangerous, irresponsible and substantial departure from reasonable behaviour that was a substantial contributing cause of the results. [Emphasis added.]

[27] Ms. Martin correctly conceded that the standard of review on certiorari, in relation to the sufficiency of evidence, is very deferential. In criminal matters, certiorari is limited to jurisdictional error. When assessing the sufficiency of evidence in support of a committal, a judge at a preliminary inquiry only commits an error going to jurisdiction if there is no evidence in relation to some essential element. See: R. v. Russell (2001), 2001 SCC 53, 157 C.C.C. (3d) 1 at paras. 19-21 (S.C.C.); R. v. Skogman (1984), 1984 CanLII 22 (SCC), 13 C.C.C. (3d) 161 at 167-171 (S.C.C.).

[28] I am satisfied that Horkins J. did not err in finding that there was sufficient evidence in relation to the objective fault elements of unlawful act manslaughter and criminal negligence. He certainly did not commit any jurisdictional error in this regard.

[29] In support of her argument on this point, Ms. Martin relied on a number of circumstances that could infer that Johnson lacked foresight of the risk of bodily harm, including the following: the cocaine consumed by the two young women over the course of their long night of partying did not appear to have caused any significant bodily harm; the accused and the consumers of the drug that was provided at Johnson’s condominium that night all seemed to believe that it was cocaine; the quantity of the drug was not great; the accused told the police that he had previously tried the drug without incident; there was said to be no known prior history of adverse effects caused by this particular drug; the drug was not injected or used in a manner that would increase its potency; and the accused called 911 and obtained medical help, once he realized that the drug did have adverse effects on the two women.

[30] The difficulty with a number of the above circumstances is that they tend to focus on Johnson’s subjective beliefs, rather than on the reasonable person’s beliefs, and they depend on acceptance of certain assertions made by Johnson in his statement to the police. More importantly, there is substantial evidence that points in a different direction. Unlike Horkins J., I am satisfied that a trier of fact could reasonably infer that Johnson either knew or should have known that the drug he provided to the two young women contained heroin. The circumstances supporting this inference include the following:

• First, it is clear that the accused was in possession of heroin that night. A reasonable quantity of heroin, namely, 2.58 grams, was found in a bag in a drawer in the kitchen island of his condominium;

• Second, it can be inferred that heroin was out in the open and was being consumed in the condominium that night. Two glasses in the kitchen, including one glass linked to Ms. Singh, exhibited traces of heroin. In addition, the toxicology and pathology evidence, as well as the reactions of the two young women to the drug, strongly infer that the drug consumed was heroin or, at the very least, that it contained some significant amount of heroin;

• Third, it can be inferred that Johnson was a commercial drug trafficker at the time and was not just a social trafficker and/or drug user. He was in possession of three different drugs in his condominium (marijuana, cocaine, and heroin), there is no evidence that he was himself a heroin user, the quantity of marijuana (791 grams) and the way it was found (in a large block or brick) was strongly suggestive of an intent to traffic, there was white residue on a set of scales found in the condominium, there was $2,000 in two stacks found in the kitchen, there was another $54,830 found in a black bag that Johnson was trying to hide outside the condominium after EMS personnel arrived, and all of this money belonging to Johnson was organized into $1,000 bundles;

• As a matter of common sense, a commercial drug trafficker would likely know the difference between the various drugs in his possession, especially his most expensive drug, namely, heroin. Johnson admitted to the police that he had recently purchased this drug from a supplier. It can be inferred, also as a matter of common sense, that he likely paid heroin prices and not cocaine prices.

[31] In the alternative, even if there was no evidence as to Johnson’s knowledge that the drug he provided was heroin (or that it contained heroin), I agree with Horkins J.’s reasoning concerning the inherent dangerousness of the conduct at issue in this case. There was evidence before Horkins J., both from the toxicologist and from some of the witnesses, concerning the known risks associated with contamination of street drugs. Indeed, this problem has become ubiquitous. Furthermore, the two young women had already consumed significant amounts of alcohol and cocaine. In other words, they were in a vulnerable position. Finally, the evidence of both the toxicologist and the pathologist was to the effect that cocaine (assuming this is what Johnson thought he was providing the two young women) is a potentially dangerous drug that can cause death. As Dr. Woodall put it, “If somebody’s taken enough cocaine, because of the increased heart rate and the increased blood pressure, it can cause heart attacks.” Dr. Herath testified that “recreational levels of cocaine can also cause death … historically, death due to cocaine occurred from cardiac arrhythmia … while they’re consuming cocaine, or after some time, they collapse due to cardiac arrhythmia.” I note that in the leading case of R. v. Creighton, supra, convictions for unlawful act manslaughter and for manslaughter by criminal negligence were upheld where death was caused by trafficking cocaine amongst persons described as “experienced cocaine users.”

[32] In all these circumstances, there was abundant evidence to support committals in relation to the modified objective fault elements for the offences of unlawful act manslaughter and criminal negligence.

D. CONCLUSION

[33] In the result, the certiorari Application is dismissed.

M.A. Code J.

Released: February 16, 2017

CITATION: R. v. Johnson, 2017 ONSC 1130

COURT FILE NO.: CR-16-70000364-00MO

DATE: 20170216

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

MAXWELL JOHNSON

REASONS FOR JUDGMENT

M.A. Code J.

Released: February 16, 2017

R. v. Johnson, 2017 ONSC 1130

Case Summary

A. OVERVIEW

B. FACTS

C. ANALYSIS

(i) Introduction

(ii) The first issue: the mens rea for the unlawful act element of manslaughter

(iii) The second issue: the modified objective fault element

D. CONCLUSION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 2

Legal Tests 3

Legislation 1