Court File No.: CR-22-018 Date: 2023-06-02 Superior Court of Justice – Ontario

Re: His Majesty The King, Crown And: George Brazier, Defendant

Counsel: Indy Kandola and Susan Safar, for the Crown Anthony G. Bryant and Stephanie Marcade, for Mr. Brazier

Heard: December 6, 8 and 14, 2022 and February 7-10, 2023

Reasons for Judgment

C. Boswell J.

[1] Mr. Brazier faces a four count indictment: one count of manslaughter and three counts of trafficking in controlled substances.

[2] The Crown alleges that Mr. Brazier was a drug dealer. They say that on March 23, 2020 he sold fentanyl and cocaine to a young man named James Glover. They further say that Mr. Glover ingested the drugs he purchased from Mr. Brazier and died as a result.

[3] Mr. Brazier’s trial was completed, as a judge alone trial, over seven days between December 2022 and February 2023. Mr. Brazier elected to testify in his own defence. He denied that he was a drug dealer and, more particularly, that he sold drugs of any kind to Mr. Glover on March 23, 2020.

[4] The following are my reasons for judgment.

[5] I begin with an overview of the circumstances of the alleged offences.

Overview

The Release from Waypoint

[6] James Glover was a young man with a drug problem. He was addicted to opioids. In the early part of 2020 he entered an in-patient drug rehabilitation program at the Waypoint Centre for Mental Health in Penetanguishene. While there, he met and formed a relationship with a young woman named Michelle McTamney.

[7] On March 11, 2020 the World Health Organization declared the COVID-19 outbreak a global pandemic. On March 17, 2020 the Province of Ontario declared a provincial state of emergency and began to order the closure of certain business and facilities. On March 18, 2020, Simcoe County also declared a state of emergency.

[8] In response to the emergency declarations, Waypoint took steps to reduce its in-patient population. On March 23, 2020, Mr. Glover and Ms. McTamney were released to the community, despite the fact that their treatment programs were not yet complete.

[9] Mr. Glover experienced an immediate relapse. He and Ms. McTamney took a taxicab from Waypoint to Mr. Glover’s residence in Wasaga Beach. Mr. Glover instructed the driver to stop at a Beer Store along the way so that he could purchase a case of beer. In addition to the beer, he managed to obtain and ingest both fentanyl and cocaine on the day of his release. He overdosed on fentanyl and died within roughly 12 hours of leaving the treatment program.

[10] The source of the drugs that killed Mr. Glover is the central issue for trial.

Mr. Glover’s Efforts to Obtain Drugs

[11] Police officers investigating Mr. Glover’s sudden death located an iPhone smartphone on his person. The phone was seized and subsequently analyzed by the Digital Forensic Analysis lab of the Ontario Province Police.

[12] An examination of the SMS message folder on the iPhone disclosed a significant number of text communications between Mr. Glover and Mr. Brazier. Technically, the examination disclosed communications between Mr. Glover’s phone (no. 705-606-1792) and two numbers the police associated with Mr. Brazier, specifically 705-606-7966 (“7966”) and 289-801-8274 (“8274”). There is no dispute in this case, however, that Mr. Glover was the author of the relevant texts sent from his phones. Moreover, there is no dispute that Mr. Brazier was the sender or receiver, as the case may be, of text messages sent and received by 7966 and 8274. He acknowledged in his trial testimony that those were both his phone numbers at the relevant time.

[13] There were significantly more messages sent from Mr. Glover to Mr. Brazier than the reverse. The messages clearly demonstrate that Mr. Glover was quite anxious to get his hands on illicit drugs as soon as he could, once he was released from Waypoint. The messages also make it clear that Mr. Glover believed he could obtain those drugs from Mr. Brazier.

[14] Between 6:37 p.m. and 7:35 p.m. on March 21, 2020, Mr. Glover sent 20 text messages to Mr. Brazier, spread between 7966 and 8274. The messages sent by Mr. Glover included the following, amongst others:

6:37:06 Hey Bro 6:37:15 Getting out of rehab early Monday 6:37:33 Was wondering if you had any purple Gatorade you could deliver Monday 6:37:49 Maybe some of the white kind too of some others (sic) groceries 6:38:55 Got delivery money

[15] The call log from Mr. Glover’s phone reflects that Mr. Brazier attempted to call Mr. Glover at 6:39 p.m. on March 21, 2020. That call went unanswered. Mr. Glover, nevertheless, continued to send text messages to Mr. Brazier, including:

7:34:28 Can I get groceries delivered tonight if I can make it home? 7:34:36 Will pay 20 delivery 7:35:37 Let me know ASAP

[16] Mr. Brazier’s first text reply to Mr. Glover came at 10:28 p.m. on March 21, 2020. He said only “I fell asleep”. Thereafter, Mr. Brazier attempted to call Mr. Glover at 10:28 p.m., 10:31 p.m. and 11:13 p.m. on March 21, 2020. None of those calls were answered.

[17] Mr. Glover eventually replied to Mr. Brazier’s text at 9:59 a.m. the next morning – March 22, 2020 – saying, “Sorry be home Monday”, to which Mr. Brazier answered “K”.

[18] The communications between Mr. Glover and Mr. Brazier that are of particular significance to this proceeding begin at 11:15:37 a.m. on Monday, March 23, 2020 and include the following exchange:

11:15:37 Mr. Glover Ok be in town in an hour 11:15:51 Mr. Glover Could you do 40 for one bag of groceries? 11:16:11 Mr. Glover Will need 3 11:16:13 Mr. Brazier No bro it’s 50 11:16:16 Mr. Glover Ok 11:16:26 Mr. Glover What colour Gatorade you got 11:16:43 Mr. Brazier Pur 11:17:59 Mr. Glover Ok I will need 2 purple Gatorade and 60 bucks of white groceries 11:18:05 Mr. Glover I need them delivers (sic) tho 11:18:22 Mr. Glover Will pay do (sic) delivery 11:18:22 Mr. Brazier K 11:19:02 Mr. Brazier Give me a bit. Let me no (sic) when home 11:46:03 Mr. Glover Ok be home in a half hour on way now

[19] Mr. Glover let Mr. Brazier know he was home at 12:04 p.m. on March 23, 2020. At 12:27 p.m. he asked Mr. Brazier if he was on the way. Mr. Brazier responded at 12:28 indicating that he was working on a ride. Mr. Glover told him he could pay $30 for delivery if that would help. Mr. Brazier texted, at 12:30 p.m., “So you got 190”. Three minutes later he indicated that he had found a ride and would be leaving in five minutes.

[20] At 12:48 p.m. Mr. Brazier texted Mr. Glover to say he was on his way. At 12:53 p.m. Mr. Glover asked Mr. Brazier to text him when he arrived. Mr. Brazier responded almost immediately saying “It says 8 mins.”

[21] There were no further communications between Mr. Glover and Mr. Brazier on March 23, 2020 until 3:15 p.m. when Mr. Glover called Mr. Brazier. The call lasted 1 minute and 11 seconds.

[22] At 3:40 p.m. Mr. Brazier texted Mr. Glover saying, “Dude, call me man. What’s up? I’m not sure what kind of laying (sic) you were looking at”. Roughly 15 seconds later he texted a correction, “Money you were looking at?”

[23] At 3:41 p.m. Mr. Glover called Mr. Brazier. The call lasted 58 seconds. They had another call at 3:43 p.m. that lasted 1 minute 47 seconds and another at 3:45 p.m. that lasted 26 seconds.

[24] At 4:03 p.m., Mr. Brazier texted Mr. Glover, “On the way.”

[25] The Crown asserts that the foregoing text messages support the conclusion that Mr. Brazier sold drugs to Mr. Glover, including fentanyl and cocaine, on two occasions on March 23, 2020: once at roughly 1:00 p.m. and once at roughly 4:30 p.m. I will examine the Crown’s assertion in detail momentarily. First, I will briefly canvas the circumstances of Mr. Glover’s death and the subsequent arrest of Mr. Brazier.

The Death of Mr. Glover

[26] Mr. Glover lived with his parents in a single family residence at 8 Mary Street in Wasaga Beach. He and Ms. McTamney spent much of the day there on March 23, 2020.

[27] Mr. Glover’s parents were, that same day, travelling back from a vacation in Australia. At 7:49 p.m. Mr. Glover’s mother sent him a message on WhatsApp – an instant messaging platform – advising him that they had landed in Toronto. She asked if Mr. Glover was at home. He responded positively at 8:04 p.m.

[28] At 8:21:29 Mr. Glover sent his mother a WhatsApp message indicating that he was not feeling well and was going to bed. He sent his final message at 8:21:51, saying “Good nights y’all”.

[29] As I said, Ms. McTamney spent much of the day with Mr. Glover on March 23, 2020. On the evidentiary record before me, it is not possible to confidently say when she left him. She had called her mother earlier in the day looking for a ride home. She had to wait, however, until her mother’s workday ended before getting picked up. Mr. Glover’s phone records reflect that Ms. McTamney’s number texted him at 9:51 p.m. asking “You ok?” I infer that she had left prior to that time. Indeed, I infer that she left prior to 8:21 p.m. when Mr. Glover sent the “Good nights y’all” message to his mother over WhatsApp.

[30] According to Ms. McTamney, Mr. Glover was still alive when she left. She said, however, that he had ingested drugs and that he “looked like the walking dead”. The colour was out of his face and his lips were bluish.

[31] Mr. Glover’s parents arrived home in Wasaga Beach at about 10:00 p.m. on March 23, 2020. They did not check on Mr. Glover that night. By noon the next day, they were concerned that he had not yet come out of his room. His father went to his door and called but received no response. He broke in the door and found his son deceased on his bed.

The Arrest of Mr. Brazier

[32] The police investigation into Mr. Glover’s sudden death included a review of the contents of his phone. Based largely on the text communications between Mr. Glover and Mr. Brazier between March 21, 2020 and March 23, 2020, investigators formed the opinion that Mr. Brazier had trafficked fentanyl and cocaine to Mr. Glover. The decision was made to arrest him for trafficking. A decision on whether to charge him with manslaughter would have to await an autopsy and toxicology tests.

[33] The arrest occurred on April 2, 2020 at about 2:14 p.m. Mr. Glover was located on a bicycle on Mosley Street in Wasaga Beach. Officers LeSage and Hogg executed the arrest. Mr. Brazier was transported to the Wasaga Beach OPP detachment. He was cautioned and given his right to counsel. After he spoke to counsel, he was interviewed by Officer LeSage.

[34] During the interview, Officer LeSage asked Mr. Brazier if he knew James Glover. He said he “didn’t remember his last name too much”. He added that he had not seen James for awhile so he “wasn’t really thinking of him.” At trial, however, he said he and Mr. Glover were “good friends” who were “very close”.

The Evidentiary Record at Trial

[35] Mr. Brazier’s trial commenced on December 6, 2022. It proceeded over seven days between December 6 and February 10, 2023. Over that period, the Crown tendered a dozen witnesses. They included a number of police officers and a fire captain who attended at the sudden death scene, a pathologist who opined on the cause of death, a forensic toxicologist, a digital forensic analyst, and an expert in coded language utilized in drug transactions.

[36] The Crown’s case also included the testimony given by Michelle McTamney during the preliminary inquiry. That evidence was tendered under s. 715(1) of the Criminal Code on the basis that Ms. McTamney was too ill to testify at trial. It was admitted pursuant to a ruling I made on October 24, 2022 following a contested application. The ruling is reported as 2022 ONSC 5722.

[37] As I noted, Mr. Brazier testified in his own defence.

[38] With that general overview of the case in place, I will comment briefly on some of the fundamental legal principles that apply to my assessment of the evidence tendered by the litigants. I will then examine the essential elements of the charged offences with a view to determining if the Crown has established Mr. Brazier’s guilt for any of those offences to the reasonable doubt standard. I will refer to the evidence in more detail as I go through each of the essential elements.

Fundamental Principles

The Presumption of Innocence

[39] The presumption of innocence is an organizing principle of the Canadian criminal justice system. Mr. Brazier is presumed innocent of the charged offences. The presumption of innocence stays with him throughout the trial and is only displaced if I am satisfied that the Crown has proven a charged offence beyond a reasonable doubt.

The Burden and Standard of Proof

[40] The Crown has the sole burden of proving Mr. Brazier’s guilt with respect to each of the charged offences. Mr. Brazier has no obligation to prove anything or to testify.

[41] Mr. Brazier’s guilt must be established to the reasonable doubt standard before a conviction can be registered against him.

[42] The concept of proof beyond a reasonable doubt is of fundamental importance in the Canadian criminal justice system. It imposes a high standard. A reasonable doubt is not an imaginary, far-fetched, or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the absence of evidence.

[43] Proof of probable or likely guilt is not enough to sustain a conviction. At the same time, proof beyond a reasonable doubt does not require absolute certainty. Absolute certainty is a standard that is impossibly high. Having said that, the law is clear that proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities.

[44] In the final analysis, in order to convict Mr. Brazier of an offence, I must be sure that he committed it. If I am not sure, I must acquit him of that offence.

The Assessment of Evidence

[45] The evidence of each witness who testified must be considered from a common sense perspective, with an open mind and without sympathy, prejudice or bias. As the trier of fact, I may choose to believe and rely upon some, all of none of any witness’s testimony.

[46] The factors to be considered when assessing the testimony of a witness are not a closed list. They include, amongst others, whether the witness appeared to be telling the truth, the consistency of the witness’s evidence, both internally and externally, and whether the witness had any motive to fabricate evidence or to favour one side over the other.

[47] My assessment of a witness’s testimony involves a consideration of both its credibility and reliability. Credibility and reliability are not the same thing. Credibility has to do with the truthfulness of the witness. Reliability has to do with the accuracy of the witness’s testimony. Reliability involves an assessment of the witness’s ability to observe, recall and recount evidence. A witness who is not credible cannot give reliable evidence. But credibility is not a proxy for reliability. A credible witness may give unreliable evidence. See R. v. H.C., 2009 ONCA 56 at para. 41.

The Exculpatory Testimony of the Accused

[48] Mr. Brazier elected to testify in his own defence. He denied that he was a drug dealer and further denied that he had sold drugs of any kind to Mr. Glover on March 23, 2020, or at any time.

[49] Mr. Brazier’s testimony is of an exculpatory nature. It is not necessary that I believe Mr. Brazier’s evidence for it to raise a reasonable doubt. In accordance with the Supreme Court’s instructions in R. v. W.(D.), [1991] 1 S.C.R. 742, I must approach the evidence of Mr. Brazier and apply the reasonable doubt standard to that evidence with the following framework in mind:

(a) First, if I believe Mr. Brazier’s evidence that he did not sell drugs to Mr. Glover on March 23, 2023, I must acquit him of all of the charged offences because in those circumstances I could not be satisfied beyond a reasonable doubt that he trafficked drugs to Mr. Glover or that Mr. Glover died as a result of ingesting drugs sold to him by Mr. Brazier;

(b) Second, even if I do not believe Mr. Brazier’s evidence that he did not sell drugs to Mr. Glover, I must still acquit him of an offence if his evidence leaves me in a state of reasonable doubt about his guilt in relation to that offence;

(c) Third, even if Mr. Brazier’s evidence does not leave me in a state of reasonable doubt about his guilt in relation to an offence, I must not convict him of that offence unless I am satisfied beyond a reasonable doubt, based on evidence that I accept and rely upon, that he is guilty of that offence.

[50] I note as well that should I reject Mr. Brazier’s exculpatory testimony, I must be careful not to use that rejection as positive evidence of guilt. Rejected evidence is simply evidence that I am not prepared to believe and rely upon in deciding this case. It is not proof of anything.

The Offences

[51] I will turn now to an examination of the essential elements of the charged offences. I will engage in a more detailed review of the evidence as and when it becomes relevant to an essential element in issue.

[52] I will review the counts on the indictment somewhat out of order. I will begin with the trafficking offences, since the charge of manslaughter is dependent on a finding that Mr. Brazier sold drugs, including fentanyl, to Mr. Glover on the day he died.

A. Trafficking

The Essential Elements

[53] Mr. Brazier is charged with three counts of trafficking in a controlled substance, one each for allegedly trafficking in fentanyl, heroin and cocaine. The Crown conceded that there is insufficient evidence to establish that Mr. Brazier trafficked in heroin and they elected not to proceed with that charge. In the result, an acquittal is registered on count 3.

[54] With respect to the remaining two counts of trafficking, to establish Mr. Brazier’s guilt, Crown counsel must prove beyond a reasonable doubt that:

(i) Mr. Brazier trafficked in a substance; (ii) The substance was fentanyl or cocaine as the case may be; (iii) Mr. Brazier knew the nature of the substance(s) that he trafficked; and, (iv) He intentionally trafficked in those substances.

[55] I will examine each essential element in turn.

(i) Mr. Brazier trafficked in a substance

[56] The Crown’s case against Mr. Brazier is rooted in the assertion that he trafficked illicit drugs to Mr. Glover on March 23, 2020. The case is constructed principally on three pillars: first, the first-hand account of Ms. McTamney who says she witnessed Mr. Glover purchase drugs from Mr. Brazier; second, Mr. Glover’s phone records which, the Crown says, provide graphic details of a negotiated drug purchase; and third, the detection of drugs, including fentanyl and cocaine, in Mr. Glover’s blood at the time of his death. I will briefly canvas the evidence adduced.

The Toxicology Evidence

[57] Beginning with the last of those pillars, a toxicology report prepared by the Centre of Forensic Sciences, dated December 17, 2021, indicates that both fentanyl and cocaine (including metabolites of cocaine) were found in a femoral blood sample drawn from Mr. Glover post-mortem.

[58] I qualified Zachary Currie as an expert in forensic toxicology. He testified, and I accept, that the half-life of fentanyl is between 3 and 12 hours. At the high end, therefore, 50% of the drug is eliminated every 12 hours.

[59] Mr. Glover’s blood sample was found to contain a concentration of 10 nanograms of fentanyl per millilitre of blood. Mr. Currie testified that fatalities are associated with fentanyl concentrations of 3 ng/mL and higher. Ten nanograms is, in my view, a significantly high concentration. I think it unlikely that Mr. Glover had as much as 20 ng/mL in his system at any point in time. I infer that he ingested fentanyl within 12 hours of his death. That is a particularly safe inference in light of the fact that Mr. Glover had been at Waypoint until roughly 12 hours before his death.

[60] No evidence was adduced as to the rate of elimination, or the half-life, of cocaine. I am unable to draw any specific inference, from the toxicology evidence alone, about when Mr. Glover ingested cocaine, other than to conclude that he obviously ingested it prior to death.

[61] It is axiomatic that if Mr. Glover ingested fentanyl and cocaine, he had to have acquired it. The toxicology report tells us nothing about where he sourced the drugs he ingested.

The Cell Phone Evidence

[62] Mr. Glover’s cell phone records do, however, provide strong evidence as to Mr. Glover’s source of fentanyl and cocaine.

[63] In a pre-trial ruling dated August 2, 2022 (and reported as 2022 ONSC 4262) I qualified Detective-Sergeant Michael Deyell as an expert in drug trafficking. I held that he was able to provide opinion evidence regarding the indicia of trafficking, the street value of drugs including heroin, fentanyl and cocaine and the interpretation of coded language used in the context of the sale and distribution of controlled substances.

[64] D/Sgt Deyell testified that coded language is used in drug trafficking to conceal the meaning of particular words, or the content of a conversation. The goal is to hide the true meaning of a conversation.

[65] With specific reference to the messages exchanged between Mr. Glover and Mr. Brazier on March 21 and 23, 2020, D/Sgt Deyell testified as follows:

(a) The message, “Was wondering if you had purple Gatorade you could deliver Monday” appears innocuous. But in his experience, “purple” is a common term used with fentanyl and, previously, heroin; (b) Sometimes you see another word used with “purple” to blur what is going on. In this case, that word is “Gatorade”; (c) “White” is a common term used to describe powder cocaine; (d) “Groceries” is a term that may refer to a number of different things, but in the overall context of the discussion, it is generally referring to controlled substances; (e) The phrase “Could you do 40 for one bag of groceries” refers to a particular payment, in this case $40, for a particular amount of a controlled substance. Mr. Glover goes on to say he needs “3 bags”, which means 3 units of whatever substance they were talking about; (f) It is difficult to determine how much substance is in a “bag” based only on the specific texts exchanged here. That said, it is helpful to consider how much drugs you might be able to obtain for $40. In his opinion, that sum of money for one point of fentanyl would fit. A point is 1/10 th of a gram. So, in his opinion, Mr. Glover was asking for 3 points of fentanyl for $40 per point; (g) Mr. Brazier responded, “No bro it’s 50”. D/Sgt Deyell said it is common to see haggling over drug prices. In this instance, Mr. Brazier was asking for $50 per point; (h) When Mr. Glover asked, “What colour Gatorade you got”, Mr. Brazier answered “Pur” which D/Sgt Deyell interpreted to mean “purple” which, in turn, means fentanyl or a fentanyl/heroin mixture; (i) Mr. Glover eventually said, “I need 2 purple Gatorade and 60 bucks of white groceries”. In D/Sgt Deyell’s opinion, Mr. Glover was asking for 2 points of fentanyl and $60 worth of cocaine. Cocaine, he said, has sold for $100 per gram for decades. Prices rose during COVID. Sixty dollars worth would be roughly half a gram; (j) Polysubstance abuse is common with fentanyl abusers; (k) He has seen users make multiple purchases in a day, particularly with respect to fentanyl. The high only lasts a short time; and, (l) The content of Mr. Glover’s texts and the frequency of them reflect a level of desperation that is consistent with drug trafficking.

[66] Even without D/Sgt Deyell’s assistance, it appears clear to me that Mr. Glover, a known opioid addict, was looking to access drugs upon his release from Waypoint. His text messages are obviously related to the acquisition of drugs. It is simply not believable that he would repeatedly text someone outside of Waypoint in a desperate attempt to get his hands on some grape Gatorade upon his release.

[67] The text communications between Mr. Glover and Mr. Brazier were tendered for two purposes. They were principally adduced and admitted as original evidence of a drug transaction. They were also adduced, however, as an implied assertion by Mr. Glover that Mr. Brazier was a trafficker in controlled substances, including fentanyl and cocaine. This latter purpose engages the rule against hearsay.

[68] The hearsay rule, stated simply, provides that out of court assertions, or utterances, are presumptively inadmissible, if they are offered in evidence as proof of their contents. See R. v. Khelawon, 2006 SCC 57, at paras. 34-35. The central rationale for the presumptive exclusion of hearsay evidence is the general inability to test its reliability. Without the declarant’s presence in the courtroom for the purpose of cross-examination, it may be impossible to test that person’s perception, memory, narration or sincerity. See Khelawon, at para. 2.

[69] The rule against hearsay is not limited to overt declarations made out of court. Non-assertive conduct from which the trier of fact is asked to infer a statement, based on the declarant’s apparent “belief”, also implicates traditional hearsay dangers and, as such, constitutes hearsay. See R. v. Baldree, 2013 SCC 35, at para. 48. See also R. v. Badgerow, 2014 ONCA 272 at paras. 109 et. seq. In this instance, the court is asked to infer from Mr. Glover’s interactions with Mr. Brazier that Mr. Glover was implicitly stating that Mr. Brazier is a trafficker in cocaine and fentanyl.

[70] In Baldree, the Supreme Court held that express and implied assertions of fact are the same. By way of illustration, the Court provided the following example at para. 43:

There is no principled or meaningful distinction between (a) “I am calling Mr. Baldree because I want to purchase drugs from him” and (b) “I am calling Mr. Baldree because he sells drugs”. In either form, this out-of-court statement is being offered for an identical purpose: to prove the truth of the declarant’s assertion that Mr. Baldree sells drugs. No trier of fact would need to be a grammarian in order to understand the import of this evidence.

[71] The presumption against the admission of hearsay evidence is a rebuttable one. Numerous exceptions to the rule have been identified. In this instance, the admission of Mr. Glover’s implied assertion for the truth of its contents turns on the application of the principled approach to the admission of hearsay. That approach involves an inquiry into whether the evidence is necessary and sufficiently reliable to warrant its admission for the truth of its contents. See R. v. Bradshaw, 2017 SCC 35, at para. 23.

[72] Necessity is easily established in this instance because Mr. Glover is not available to testify at trial.

[73] Reliability, for admissibility purposes, refers to threshold reliability. Threshold reliability is established when, considered in all the circumstances, the proffered evidence is sufficiently reliable to overcome the hearsay dangers associated with it. See Khelawon, at para. 49. Threshold reliability may be established by showing that there are adequate substitutes for testing the truth and accuracy of the evidence (procedural reliability) or there are sufficient circumstantial guarantees of the inherent trustworthiness of the statement (substantive reliability). See Bradshaw, para. 27.

[74] In this instance, there are no apparent procedural guarantees of trustworthiness, so I will focus on whether the circumstances are such that the substantive reliability of Mr. Glover’s implied assertions is established. This standard generally requires that I be satisfied that the opportunity for contemporaneous cross-examination of Mr. Glover would add little, if anything, to the truth-finding process. See Bradshaw, at para. 31.

[75] I am satisfied that the standard is met here and that the text messages are admissible and may be considered by me for the truth of the implied assertion by Mr. Glover that Mr. Brazier was a drug dealer. I base my conclusion on the following circumstances:

(a) Mr. Glover was an opioid addict. He was not a naïve drug purchaser. It stands to reason that he knew where to reliably obtain drugs. He was not reaching out to multiple sources; (b) Mr. Glover was not a stranger to Mr. Brazier. They appear to have been well-acquainted; (c) The text messages were, in my view, clear and open to little interpretation; (d) Mr. Brazier admitted in evidence that the communications in issue were, in effect, the negotiation of a drug transaction. He said, however, that he was being disingenuous and never intended to supply Mr. Glover with drugs; (e) There is no suggestion that the messages retrieved from Mr. Glover’s cell phone were not an accurate reflection of the communications between him and Mr. Brazier; and, (f) Here, as in R. v. Bridgman, 2017 ONCA 940 at para. 54, it is “hard to imagine how cross-examination would probe any serious issues about perception, memory, narration or sincerity in relation to Mr. Glover’s implied assertion.”

[76] In the result, I find that Mr. Glover’s implied assertion – that Mr. Brazier was a trafficker of fentanyl and cocaine – is admissible for the truth of its contents.

[77] I have canvassed the toxicology and cell phone evidence. I turn now to the third pillar of the Crown’s case: the evidence of Michelle McTamney.

Ms. McTamney’s Evidence

[78] As I noted, Ms. McTamney did not testify at trial. I ruled, on the application of the Crown, that her testimony at the preliminary inquiry could be entered as substantive evidence at trial. My references to her evidence come, accordingly, from the testimony she gave at the preliminary hearing.

[79] Ms. McTamney said she spent the day with Mr. Glover on March 23, 2020. She said they took a cab from Waypoint to 8 Mary Street in Wasaga Beach. They made a stop at a Beer Store in Midland on the way. Mr. Glover bought a 15 pack of Busch beer.

[80] According to Ms. McTamney, they arrived at 8 Mary Street at about 12:30 p.m. Mr. Glover began drinking beer immediately. They hung out in Mr. Glover’s room and listened to music most of the day.

[81] She testified that Mr. Brazier and two others (Marty and a female she described as Mr. Brazier’s girlfriend) picked her and Mr. Glover up from 8 Mary Street and drove them to a local branch of the TD Bank at about 4:30 p.m. She agreed, under cross-examination, that she had initially told the police that they went to the bank around 2:30 p.m.

[82] It is an agreed fact in this case that Ms. McTamney appears on a security camera at the ATM at the TD Bank at 301 Main Street, Wasaga Beach at some point between 4:15 and 4:55 p.m. on March 23, 2020.

[83] In any event, Ms. McTamney testified that while she only saw Mr. Brazier on one occasion on March 23, 2020, she believed that Mr. Glover met with someone earlier in the day to purchase drugs without her knowledge. She said that he was “acting strange”. She thought that he was under the influence of something more than alcohol. In her experience, someone who does heroin looks like “the living dead”. The life comes out of them. That is how Mr. Glover looked to her. This was at a point prior to 4:00 p.m. and prior to when Mr. Brazier arrived at 8 Mary Street with Marty and a female. She did not, however, see him take anything prior to the trip to the TD Bank.

[84] About an hour before Mr. Brazier and the others arrived at 8 Mary Street, she observed, she said, Mr. Glover texting with “George Do Not Call” on his phone. She said Mr. Glover texted that he wanted “half a white Gatorade and 2 purple Gatorades”. She said she tried to talk him out of using.

[85] Instead, however, she actually withdrew money from the TD Bank to facilitate Mr. Glover’s purchase of drugs. She testified that on the drive to the bank she overhead talk about heroin, cocaine and weed. Mr. Glover had, she said, about $300 in change in a Folgers coffee tin. He proposed to pay for drugs with that money. Mr. Brazier was upset, she said, and did not want to be paid in change. She offered to get paper money out of the bank to avoid things escalating.

[86] She said she withdrew $180 from the ATM. She used $20 of that money to buy some marijuana from Mr. Brazier’s female friend. The other $160 she gave to Mr. Glover to buy drugs from Mr. Brazier. She testified that she observed Mr. Brazier provide Mr. Glover with a baggie with cocaine in it and another little baggie inside it with a purple substance which she identified as purple heroin.

[87] Ms. McTamney said that she saw Mr. Glover taking the drugs that he purchased from Mr. Brazier once they returned to 8 Mary Street. She said he smoked them in a “speedball”, which is a mixture of both the drugs. She did not see him prepare the drugs but saw them on a piece of tinfoil.

[88] When Mr. Glover started using the drugs, she went, she said, and retrieved a Narcan (Naloxone) kit that she had been provided with when she was released from Waypoint. She said she left it on a chest of drawers outside of Mr. Glover’s bedroom. It was in a bright green package.

[89] I note that none of the police officers who attended the sudden death scene observed a bright green Naloxone kit. The Scenes of Crime officer, PC Scott, testified that she observed a Naloxone kit inside a drawer in a little desk just outside of Mr. Glover’s bedroom. She testified that she believes she opened it and found that it was empty. She could not recall. At any rate, she photographed it. It is a black kit with a red cross on it. She did not photograph the inside of it.

[90] Ms. McTamney testified that she stayed with Mr. Glover for “quite a while” after she saw him taking drugs. She said she went with him in a cab to a convenience store to buy some snacks. She did not see him take any further drugs after the convenience store trip.

[91] When she finally left Mr. Glover, she described his appearance as “like the living dead”. The colour was out of his face. He had bluish lips.

Michelle McTamney’s Credibility and Reliability

[92] The Crown has a compelling case against Mr. Brazier even without considering Ms. McTamney’s evidence. Having said that, she does offer important eyewitness evidence that not only supports the conclusion that Mr. Brazier trafficked in substances to Mr. Glover, but also supports the conclusion that Mr. Glover ingested the substances he obtained from Mr. Brazier.

[93] I agree with defence counsel that there are reasons to be somewhat cautious about Ms. McTamney’s evidence. For instance:

(a) She was complicit in obtaining illicit substances for Mr. Glover, even though she was well aware of his struggles with addiction and abuse; (b) She was mistaken about the time when she went to the bank with Mr. Brazier, telling the police that she thought it was about 2:30 p.m.; (c) As I noted, she gave evidence at the preliminary hearing that when she became aware that Mr. Glover was ingesting drugs, she left a bright green Narcan kit on a chest of drawers outside of Mr. Glover’s bedroom. No such kit was observed by the police who searched Mr. Glover’s living area; and, (d) Ms. McTamney was admitted to the North Bay Regional Health Centre on August 4, 2022 as a result of a mental health crisis. She was examined by Dr. Vivian Parker on August 5, 2022. Dr. Parker is a staff psychiatrist in the in-patients/out-patients units of the North Bay hospital. Dr. Parker’s notes reflect the following information provided to her by Ms. McTamney:

Michelle informed me that she had been in a rehab program at Waypoint in January 2020 and left the facility with another rehab client. She stated that she dated this man for a while but that he overdosed on fentanyl and died. Michelle states that she gave Narcan to this man and tried to revive him without success…

[94] There was no evidence found in the post-mortem examination of Mr. Glover’s body that he had Naloxone in his system. Moreover, Ms. McTamney said nothing about administering Naloxone to Mr. Glover either in her statement to the police or in her testimony at the preliminary hearing.

[95] I find that Ms. McTamney did not administer Naloxone to Mr. Glover on March 23, 2020. What she told Dr. Parker in that respect was not true. I also find that she did not leave a Narcan kit on the chest of drawers outside of Mr. Glover’s bedroom. Had she done so, it would have been found by the officers who searched Mr. Glover’s living area.

[96] Ms. McTamney did not testify at trial and, in the result, was not cross-examined on her statement to Dr. Parker. It is impossible to know what explanation she might have offered for making that statement. I will not speculate about that.

[97] Despite the concerns I have identified with respect to Ms. McTamney’s evidence, it is apparent that she got a number of important details right, based on corroborative evidence in the record. For instance:

(a) She testified that Mr. Brazier arrived at 8 Mary Street with a male named Marty and another female. Mr. Brazier confirmed that he, Marty and Joanne travelled together to 8 Mary St.; (b) She testified that they went to the TD Bank at about 4:30 p.m. Mr. Brazier’s evidence corroborates that trip and its timing, as does the TD Bank security camera evidence; (c) She testified that she gave $160 of the money she withdrew from the ATM to Mr. Glover who, in turn, gave it to Mr. Brazier. Mr. Brazier confirmed that Mr. Glover did indeed give him $160 in the parking lot outside the TD Bank; (d) She said they returned to 8 Mary Street and subsequently went back out in a cab to a local convenience store to get snacks. Her evidence on this point appears to be corroborated by GPS location data retrieved from Mr. Glover’s cell phone.

Dave Rate is a special constable with the OPP. He is a digital forensic analyst. He conducted a forensic examination of Mr. Glover’s cell phone. He testified that GPS location data retrieved from that phone geolocated it to the general location of the TD Bank in issue at between 4:29 and 4:31 p.m. on March 23, 2020. At 4:36 p.m. the phone was back in the general area of 8 Mary Street. At 5:00 p.m., it was in the area of a plaza at River Road West and Georgian Glen Drive. By 5:18 p.m., it was back at Mary Street.

[98] In my view, Ms. McTamney’s evidence was generally credible and reliable. As with any witness, it is open to me to believe all, some or none of her evidence. Having considered her evidence in the context of the whole of the evidentiary record, I conclude that the following evidence provided by her is credible and reliable:

(a) She attended with Mr. Glover, Mr. Brazier and others at the TD Bank in Wasaga Beach at about 4:30 p.m. on March 23, 2020. She withdrew $180 and gave $160 of that to Mr. Glover; (b) Mr. Glover, in turn, handed that $160 to Mr. Brazier who she then observed to provide Mr. Glover with a baggie containing a white powder and another small baggie containing a purple substance; (c) She observed Mr. Glover smoke the substances that Mr. Brazier provided and she observed him to have a physical reaction to the ingestion of those substances; (d) At some time earlier in the day, though she did not see Mr. Glover meet with anyone else or acquire any other substances, she did observe him to appear high and to exhibit symptoms she considered to be consistent with opioid use; and, (e) She travelled with Mr. Glover to a local convenience store after they got home from the TD Bank. They bought snacks. She did not see Mr. Glover meet with anyone else.

Mr. Brazier’s Evidence

[99] As I noted, Mr. Brazier elected to testify in his own defence.

[100] Mr. Brazier largely accepted D/Sgt Deyell’s interpretations of his text messages. He described D/Sgt Deyell as “very good at what he does”. He said D/Sgt Deyell “knows his stuff” and that “his prices were accurate”.

[101] Mr. Brazier further accepted that Mr. Glover was looking to him to supply fentanyl and cocaine to him after he was released from Waypoint. But he denied that he was a drug dealer. He denied that he supplied Mr. Glover with any drugs on March 23, 2020 or at any other time.

[102] Mr. Brazier testified that he was a good friend of Mr. Glover’s. He said he was concerned about Mr. Glover’s drug use and he encouraged him to enter the rehab program at Waypoint.

[103] He described an occasion when he and Mr. Glover were together in a vehicle, which Mr. Glover was driving. It was wintertime. The roads were icy. Mr. Brazier said they were driving down Highway 10. They were smoking pot; in particular, a type known as “purple Kush”. According to Mr. Brazier, Mr. Glover was a “light weight” when it came to smoking marijuana. He ended up driving his car off the road in the snow.

[104] Mr. Brazier said neither one of them had their cell phones with them. They had to walk to a service station. When they got there, they found that the service station had purple Gatorade in the fridge. They laughed together about it. “Purple” became an inside joke for them, because it brought to mind the day that they spent together smoking purple Kush and drinking purple Gatorade.

[105] Mr. Brazier testified that when he got a text from Mr. Glover asking for purple Gatorade, he thought that Mr. Glover meant purple Kush, given their inside joke. When Mr. Glover asked for “white groceries”, however, he knew that what Mr. Glover was looking for was not marijuana. He thought, “really?”. He was angry because Waypoint was letting Mr. Glover out of rehab when clearly he was not better. He was not going to provide him with drugs.

[106] He said the fact that Mr. Glover deferred his release from Waypoint from March 21, 2020 to March 23, 2020 gave him more time to think. With the assistance of a friend named Joanne, he came up with a plan. Specifically, he would go along with Mr. Glover’s attempt to purchase drugs from him. But when it came time to deliver the drugs to Mr. Glover, he would instead persuade him to go down to the beach where they would have some beers and smoke some marijuana. They would talk and Mr. Brazier would hopefully persuade Mr. Glover to stay away from fentanyl and cocaine.

[107] Mr. Brazier said he intended to go to Mr. Glover’s house at about 1:00 p.m. on March 23, 2020. But at the last minute, his ride cancelled and he had no way to get there. Later in the afternoon he found an alternate ride with a mutual friend named Marty.

[108] Mr. Glover’s phone records indicate that Mr. Brazier texted Mr. Glover at 4:03 p.m. on March 23, 2020 saying “On the way”. Mr. Brazier confirmed that he, Marty and Joanne were, at that time, on the way to 8 Mary Street. They arrived about 10 minutes later. Mr. Glover and Ms. McTamney exited the residence and entered Marty’s car. They drove to a nearby TD Bank so that Ms. McTamney could withdraw money.

[109] When they arrived at the bank, Ms. McTamney got out and went to the ATM. She returned to the car with some cash. Ms. McTamney bought $20 worth of marijuana from Joanne. Mr. Brazier said that Mr. Glover passed him a handful of money. He agreed under cross-examination that the amount he was handed was $160. He told Mr. Glover, “you owe me $60, $30 you can give to Marty for the ride”. He did not address what happened to the balance of the $160.

[110] Mr. Brazier testified that prior to Mr. Glover entering rehab, he loaned Mr. Glover $60 so that Mr. Glover could obtain drugs from a drug-dealing friend of Mr. Brazier’s named Keith. Mr. Brazier wanted his $60 back. He was, he said, a junkie and in need of money.

[111] Once he had his $60 in hand, Mr. Brazier said he filled Mr. Glover in on what the plan really was. He would not be provided with drugs. Instead, the plan was to drive to the lake and drink some beer and smoke some marijuana. Mr. Glover was upset, however, and adamant on getting high. Mr. Brazier said they were unable to change his mind. In the result, they drove him and Ms. McTamney back to 8 Mary Street. He said he never heard from Mr. Glover again.

Conclusions on the Issue of Trafficking

[112] Having considered the evidentiary record as a whole, for the reasons that follow, I am satisfied beyond a reasonable doubt that Mr. Brazier trafficked in cocaine and fentanyl on March 23, 2020; more specifically, that he sold those substances to Mr. Glover.

[113] I find as a fact that Mr. Glover contacted Mr. Brazier on March 21 and 23, 2020 in an effort to acquire drugs, including fentanyl and cocaine. He did so because he believed Mr. Brazier was a person who trafficked in those substances.

[114] I further find as a fact that Mr. Brazier agreed to sell – and did sell – Mr. Glover two points of fentanyl and roughly half a gram of cocaine at approximately 1:00 p.m on March 23, 2020. He subsequently sold additional cocaine and fentanyl to Mr. Glover at roughly 4:30 p.m. on that same date.

[115] To reach these factual conclusions, I have completely rejected Mr. Brazier’s evidence that he was only “sandbagging” Mr. Glover when he agreed to sell him fentanyl and cocaine. I find that evidence to be simply untrue.

[116] I accept D/Sgt Deyell’s evidence regarding the coded language used in the text communications between Mr. Glover and Mr. Brazier, though frankly, I find those communications to be pretty clear even without D/Sgt Deyell’s evidence.

[117] And I accept the evidence of Ms. McTamney that she observed an exchange of money for drugs between Mr. Glover and Mr. Brazier outside the TD Bank in Wasaga Beach at roughly 4:30 p.m. on March 23, 2020.

[118] I will explain how I have reached each of my factual conclusions. I will begin with the reasons why I reject Mr. Brazier’s evidence.

The Rejection of Mr. Brazier’s Testimony

[119] There is no dispute about Mr. Glover’s cause of death. He died of a fentanyl overdose. The amount of fentanyl in his system was well above the amounts consistent with fatal concentrations. He also had cocaine and its metabolites in his system. It follows that Mr. Glover found a source to acquire fentanyl and cocaine following his release from Waypoint.

[120] It is possible, of course, that Mr. Glover had an inside source to obtain drugs while in rehab at Waypoint. I reject that possibility, however, largely on the basis that Mr. Glover was reaching out to Mr. Brazier for drugs, while he was still an in-patient at Waypoint.

[121] Mr. Glover had clearly made the decision to acquire and take drugs even before he was released from the treatment program. He first reached out to Mr. Brazier on March 21, 2020. By the time he was released on March 23, 2020, he appears to have reached a state of some desperation, reflected in the repeated text messages he sent to Mr. Brazier.

[122] Mr. Glover was also clearly under the impression that Mr. Brazier was a drug dealer. That is obvious by the numerous texts he sent Mr. Brazier in search of drugs, including fentanyl and cocaine. I accept Mr. Glover’s implied assertion that Mr. Brazier trafficked in fentanyl and cocaine at the relevant time. Mr. Glover was an experienced drug user and, as such, undoubtedly had knowledge of the local suppliers of the drugs he used, namely fentanyl and cocaine. He appears to have focused his efforts to obtain drugs on one supplier only: Mr. Brazier.

[123] When Mr. Glover reached out to him to obtain drugs, Mr. Brazier did not protest that he was not a drug dealer. Instead, he negotiated the terms of a drug transaction. He admits that he did so, but says he was being disingenuous.

[124] I find patently unbelievable Mr. Brazier’s explanation that the indicia of an obvious drug transaction were in fact part of a ruse to steer Mr. Glover away from drug use. Apart from the fact that the explanation is inherently improbable, it is undermined by a number of specific factors, including:

(a) Mr. Brazier haggled with Mr. Glover over the price per point of fentanyl. Price would have been entirely irrelevant if the whole transaction was a ruse; (b) Mr. Brazier admitted being paid $160 by Mr. Glover. He said $60 was to repay him for a prior loan and $30 was to cover the driver’s fee. He offered no explanation for why he was paid $70 more than he could account for; (c) Mr. Glover obviously had a very strong desire to obtain opioids on March 23, 2020. Yet there is no evidence that he attempted to obtain drugs from any other source following the meeting with Mr. Brazier at TD Bank. I would have expected that, if Mr. Brazier had refused to sell him drugs, Mr. Glover would immediately have begun sourcing them from an alternate supplier. There is no evidence that he did so; and, (d) Ms. McTamney testified that she saw Mr. Brazier provide Mr. Glover with drugs, which she described as heroin and cocaine, upon payment to Mr. Brazier of $160. I accept her evidence as credible and reliable. It is entirely consistent, in my view, with the probabilities of the case on the whole.

[125] I completely reject Mr. Brazier’s testimony as to the nature of his dealings with Mr. Glover on March 23, 2020. His evidence does not leave me with a reasonable doubt about whether he trafficked in a controlled substance on the occasion in issue.

[126] I am satisfied, beyond a reasonable doubt, based on the text communications between Mr. Glover and Mr. Brazier and on the evidence of Ms. McTamney that Mr. Brazier did traffic in a controlled substance on March 23, 2020.

[127] It is, strictly speaking, unnecessary that I be satisfied that Mr. Brazier trafficked on more than one occasion on March 23, 2020. I am satisfied, beyond a reasonable doubt, however, that he trafficked controlled substances to Mr. Glover two times on March 23, 2020. Once, at roughly 4:30 p.m. outside of the TD Bank. The other time was approximately 1:00 p.m.

[128] In my view, the text messages exchanged between Mr. Glover and Mr. Brazier demonstrate that a deal was consummated for Mr. Glover to acquire fentanyl and cocaine on March 23, 2020 at approximately 1:00 p.m. This is a deal that Mr. Glover was quite clearly anxious to complete. He had been setting it up well in advance.

[129] Shortly after 12:30 p.m. Mr. Brazier indicated to Mr. Glover that he had found transportation to Mr. Glover’s residence and would be leaving shortly. At 12:53 p.m., Mr. Glover texted Mr. Brazier and asked him to text him when he arrived. Mr. Brazier responded with a message that indicated, in my view, that he was 8 minutes away from Mr. Glover’s home.

[130] I appreciate that Mr. Brazier never did text Mr. Glover to indicate that he had arrived. And Mr. Brazier testified, of course, that his ride fell through at the last minute and the 1:00 p.m. meet-up never occurred.

[131] I reject Mr. Brazier’s evidence, however, and find that the 1:00 p.m. meet-up did occur and that Mr. Brazier sold fentanyl and cocaine to Mr. Glover at that time. My conclusion in this respect is grounded in the following evidence:

(a) The text communications between Mr. Brazier and Mr. Glover clearly demonstrate that a deal to traffic in cocaine and fentanyl had been reached; (b) Mr. Brazier clearly advised Mr. Glover that he was on the way and let him know he was just 8 minutes out at one point. Such an indication is inconsistent with the conclusion that Mr. Brazier’s ride had fallen through. Moreover, at no point did Mr. Brazier communicate with Mr. Glover to tell him that the ride had fallen through; (c) There are no texts from Mr. Glover to Mr. Brazier between 12:53 p.m. and 3:15 p.m. In other words, Mr. Glover did not question where Mr. Brazier was, why he had not shown up at 1:00 p.m. as agreed upon, nor any attempt to arrange a new time to meet. Moreover, there is no evidence that Mr. Glover attempted to source the drugs from a third party following 1:00 p.m. The inference I draw from the absence of such evidence is that Mr. Glover did not seek out alternative sources of supply because he had, in fact, obtained the drugs he was seeking from Mr. Brazier.

To be clear, when I speak about an absence of evidence that Mr. Glover was seeking drugs from any other source apart from Mr. Brazier, I am not suggesting that Mr. Brazier had any onus to tender such evidence. The onus to prove the case remains, at all times, on the Crown and only the Crown. I am, instead, observing that the contents of Mr. Glover’s phone reflect repeated communications with Mr. Brazier. They do not contain any communications consistent with an attempt to source controlled substances from any other third party;

(d) Finally, Ms. McTamney testified, and I accept, that although she did not see Mr. Brazier, or anyone else, attend at 8 Mary Street at any time prior to 4:30 p.m., she did observe, earlier in the afternoon, that Mr. Glover appeared high – something more than just impaired by alcohol consumption. She noted his appearance was consistent with opioid use.

[132] In the result, I am satisfied, beyond a reasonable doubt that, considering the evidentiary record as a whole, the only rational conclusion is that Mr. Brazier trafficked in controlled substances, including fentanyl and cocaine, on two occasions on March 23, 2020.

[133] I will proceed to consider the next essential element.

(ii) The substances trafficked were fentanyl and cocaine

[134] I am satisfied beyond a reasonable doubt that the substances trafficked by Mr. Brazier on March 23, 2020 were fentanyl and cocaine. There are several factual findings that support my conclusion.

[135] First, the text communications between Mr. Glover and Mr. Brazier make it clear that the substances being sought by Mr. Glover – and which Mr. Brazier undertook to supply – were fentanyl and cocaine. I accept D/Sgt. Deyell’s opinion evidence that “purple Gatorade” meant fentanyl and “white groceries” meant cocaine. Mr. Brazier accepted as much in his testimony.

[136] Second, Ms. McTamney testified – and I accept – that there were two substances trafficked at 4:30 p.m. One substance appeared to her to be a white powder consistent with cocaine. The other appeared to be a purple substance that she identified as heroin. I find that she mis-identified that substance and that it was, in fact, fentanyl. She testified, and I accept, that she witnessed Mr. Glover smoking the substances he purchased from Mr. Brazier. There was, however, no heroin, nor any of its metabolites, found in Mr. Glover’s femoral blood sample.

[137] On the other hand, there was a significant amount of fentanyl found in Mr. Glover’s blood, along with cocaine and its metabolites.

(iii) Mr. Brazier knew the substances were fentanyl and cocaine

[138] I am similarly satisfied, beyond a reasonable doubt, that Mr. Brazier knew that the substances he was selling to Mr. Glover were fentanyl and cocaine.

[139] The text communications between Mr. Glover and Mr. Brazier leave little doubt about what substances were being discussed. Mr. Brazier testified that, at first, he thought Mr. Glover was talking about purple Kush (i.e marijuana), but that it was not long before he realized that Mr. Glover was actually looking for fentanyl and cocaine.

[140] Mr. Brazier further testified that he was, himself, an opioid addict. He was certainly not naïve when it came to controlled substances such as fentanyl and cocaine.

[141] Mr. Brazier also testified that D/Sgt Deyell “knew his stuff” when it came to interpreting coded language and that his pricing was accurate. Mr. Brazier would only have been in a position to offer such evidence if he also “knew his stuff” and was familiar with the pricing of fentanyl and cocaine.

[142] Again, the only rational conclusion, on a consideration of the whole of the evidentiary record is that Mr. Brazier knew that what he was trafficking was cocaine and fentanyl.

(iv) Mr. Brazier intentionally trafficked in fentanyl and cocaine

[143] Finally, I am satisfied beyond a reasonable doubt that Mr. Brazier intentionally trafficked in fentanyl and cocaine. Once again, on the evidentiary record as a whole, the only rational conclusion is that Mr. Brazier was acting intentionally when he negotiated to sell Mr. Glover both fentanyl and cocaine on two occasions on March 23, 2020.

[144] The interactions between Mr. Brazier and Mr. Glover are classic drug transactions. Mr. Glover was an earnest seeker and Mr. Brazier a willing supplier of two controlled substances.

[145] There is no evidence that might support a conclusion that the delivery of cocaine and fentanyl to Mr. Glover by Mr. Brazier was inadvertent, accidental or unintended.

[146] I can, and do, apply the common sense inference that a sane and sober person means to do what they actually do. I have found that Mr. Brazier actually sold Mr. Glover fentanyl and cocaine on two occasions on March 23, 2020. In my view, it is reasonable, in all the circumstances, to conclude that he meant to do so.

[147] In the result, I am satisfied that Mr. Brazier is guilty of trafficking in cocaine and fentanyl to Mr. Glover on March 23, 2020 and guilty verdicts will accordingly be entered on counts 2 and 4.

[148] I turn now to count 1 – the charge of manslaughter.

B. Manslaughter

The Essential Elements

[149] To establish Mr. Brazier’s guilt for unlawful act manslaughter, the Crown must prove the following essential elements to the reasonable doubt standard:

(i) That Mr. Brazier caused Mr. Glover’s death; (ii) That death was caused by an unlawful act; and, (iii) The unlawful act that caused death was objectively dangerous.

See R. v. Creighton, [1993] 3 S.C.R. 3 at paras. 72-78 and R. v. H.C., 2022 ONCA 409 at paras. 33-34.

[150] The unlawful act in this case was the selling of fentanyl and cocaine by Mr. Brazier to Mr. Glover. The questions for determination are whether the sale of those substances to Mr. Glover caused his death and whether such a sale was objectively dangerous. I will consider those questions in turn.

(i) Did Mr. Brazier’s sale of fentanyl and cocaine cause Mr. Glover’s death?

[151] This essential element requires the Crown to establish a nexus between the sale of fentanyl and cocaine by Mr. Brazier and the death of Mr. Glover.

[152] Causation in homicide cases has two aspects: factual causation and legal causation.

[153] Factual causation asks whether the death of the deceased would have occurred “but for” the actions of the defendant. See R. v. Maybin, 2012 SCC 24 at para. 20. Where factual causation is established, legal causation asks a further question, to wit, whether the defendant should be held criminally responsible for the death of the deceased based on the principles of moral responsibility as applied in the Canadian criminal law context. See R. v. Sundman, 2022 SCC 31 at para. 33.

[154] Legal causation serves a limiting function which narrows a wider range of factual causes into those “which are sufficiently connected to a harm to warrant legal responsibility.” See Maybin, at para. 16. In other words, legal causation is concerned with “who among those who has factually caused death should be held liable for causing that death in the eyes of the criminal law.” See R. v. Talbot, 2007 ONCA 81, at para. 80.

[155] Ultimately, designating a “but for” cause as a legal cause turns on a normative evaluation which reflects the common sense and moral instincts of the trier of fact. See R. v. Doering, 2022 ONCA 559 at para. 135.

[156] Legal causation is established where the Crown proves that the defendant’s conduct amounts to a “significant contributing cause” of the victim’s death. See R. v. Nette, 2001 SCC 78, at paras. 46-73.

[157] It is not necessary for the trier of fact to examine factual and legal causation separately. The significant contributing cause test joins the distinct inquiries. See R. v. Talbot, at para. 81.

[158] In the case at bar, there is a preliminary issue that goes to both factual and legal causation. Specifically, whether the Crown has established that the fentanyl sold to Mr. Glover by Mr. Brazier is the fentanyl that he overdosed on. In my view, the Crown has done so.

[159] I find that Mr. Brazier sold two points of fentanyl to Mr. Glover at roughly 1:00 p.m. He sold additional fentanyl to him at roughly 4:30 p.m.

[160] The Crown’s toxicologist, Mr. Currie, testified that it is not possible to “reverse engineer” the amount of fentanyl that must have been ingested to reflect the concentration observed in Mr. Glover’s femoral blood sample. Accordingly, it is impossible to say whether the amounts purchased by Mr. Glover from Mr. Brazier were sufficient to reach those levels.

[161] Having said that, I remain satisfied that Mr. Glover did not obtain fentanyl from any other source on March 23, 2020. I reach that conclusion for the following reasons:

(a) Mr. Brazier appears, from Mr. Glover’s phone records, to be the only person from whom Mr. Glover sought to purchase opioids on March 23, 2020; (b) Mr. Glover contacted Mr. Brazier before he reached his residence and again shortly after he reached his residence around noon on March 23, 2020. Mr. Brazier, I find, attended with a supply of fentanyl and cocaine roughly an hour later. There is no indication that Mr. Glover reached out to any other supplier in the meantime; (c) When Mr. Glover sought a further supply of opioids, he again reached out to Mr. Brazier, who met him again at 4:30 and provided him with further fentanyl and cocaine; (d) It stands to reason that if Mr. Glover wished to obtain even more fentanyl on March 23, 2020, he would have again reached out to Mr. Brazier. There is no indication that he did; (e) There is no indication that he reached out to any other third party to supply him with further opioids after 4:30 p.m.; (f) The GPS location data from Mr. Glover’s cell phone supports the conclusion that he did not leave his residence after 4:36 p.m. other than to attend near a local convenience between about 5:01 p.m. and about 5:16 p.m. Ms. McTamney testified, and I accept, that the purpose of that excursion was to buy snacks. After that, Mr. Glover’s cell phone appears to have remained in the immediate vicinity of 8 Mary Street for the balance of the night.

It is possible, of course, that a third party could have attended at Mr. Glover’s residence to bring him drugs after 5:16 p.m. But I would, in those circumstances, expect to see some evidence on Mr. Glover’s phone that he attempted to reach out to another source for those drugs. That evidence is absent; and,

(g) Ms. McTamney testified that there were no further drug transactions that she witnessed throughout the day. I have found, of course, that there was a drug transaction between Mr. Brazier and Mr. Glover at about 1:00 p.m. that Ms. McTamney apparently did not witness. So it is certainly possible that Mr. Glover purchased other drugs during the day that he managed to keep from her attention. Ms. McTamney’s evidence about an absence of other drug transactions remains, however, one piece of circumstantial evidence that tends to support the conclusion that Mr. Glover did not purchase drugs from anyone but Mr. Brazier on March 23, 2020.

[162] Notwithstanding the determination that it was the ingestion of the fentanyl supplied by Mr. Brazier that led to Mr. Glover’s death, it remains to be determined whether Mr. Brazier’s conduct in supplying that fentanyl significantly contributed to Mr. Glover’s death. I am satisfied, beyond a reasonable doubt, that it did.

[163] Indeed, apart from the actual ingestion of the drug, it is hard to imagine a more significant contributing cause to a fentanyl overdose than the supply of the drug that caused death. And Mr. Brazier supplied it on March 23, 2020, not once but twice.

[164] Fentanyl is widely known to be a particularly dangerous drug. Those who traffic in it, traffic in death. They cannot be said to be morally innocent of the foreseeable consequences of so doing. As the Court of Appeal instructed in R. v. J.S.R., 2008 ONCA 544, at para. 33:

It must be borne in mind that legal causation is essentially about determining who among those who have factually contributed to an event should be held legally responsible for that event. Legal responsibility involves normative and moral judgments. It is entirely appropriate that all who participate in inherently very dangerous conduct should be said to have caused the foreseeable results of their conduct.

[165] To be fair, J.S.R. was a case that involved a shoot-out on the streets of downtown Toronto. A young female bystander was hit by an errant bullet and killed. J.S.R. was charged with her murder. While J.S.R. had been involved in the shoot-out, he did not fire the shot that killed the victim. A live issue was whether, in the circumstances, he could be said to have caused the death of a person that someone else shot.

[166] While the circumstances in J.S.R. are undoubtedly different than those here, the same reasoning nevertheless applies, in my view. A person who engages in inherently dangerous conduct – conduct that cannot be said to be morally innocent – should be said to have caused the foreseeable results of their conduct.

[167] Courts have, in fact, repeatedly concluded that the supply of controlled substances constitutes a significant contributing cause where death ensues as a result of the ingestion of those substances. See, for instance, R. v. C.W., 2006 O.J. No. 1392; R. v. Haas, 2016 MBCA 42, leave to appeal refused, [2016] S.C.C.A. No. 306; R. v. Valiquette, 2017 NBQB 27; and, R. v. Fournier, 2022 ONCJ 296.

[168] I note that in several Canadian cases, persons accused of manslaughter associated with the trafficking of controlled substances, have argued that the autonomous decision of the deceased to ingest the drugs breaks the change of causation, such that the supply can no longer be said to be a significant contributing cause. Although such arguments appear to have had some traction in the United Kingdom, they have generally been rejected in Canada. See R. v. Haas, as above. In any event, Mr. Brazier did not advance such an argument here.

[169] In all the circumstances, I am satisfied beyond a reasonable doubt that Mr. Brazier’s conduct, in supplying Mr. Glover with the fentanyl that killed him, contributed significantly to Mr. Glover’s death.

[170] I will move on to the final essential element of manslaughter – the consideration of whether the sale of fentanyl was objectively dangerous.

(ii) The supply of fentanyl was objectively dangerous

[171] The fault element, sometimes referred to as the mens rea, of the offence of manslaughter is defined as an objective foreseeability of a risk of bodily harm that is neither trivial nor transitory, coupled with the fault element for the predicate offence. See R. v. Javanmardi, 2019 SCC 54 at para. 31. Objective foreseeability of death is not a constituent element of the offence of manslaughter. See R. v. MacKinnon, 2021 ONSC 4763 at para. 725.

[172] Here, the predicate offence was trafficking in fentanyl and I have already addressed the fault element for that offence.

[173] Objective foreseeability of a risk of bodily harm that is neither trivial nor transitory engages the court in an assessment of whether a reasonable person in the same circumstances as the defendant would realize that his unlawful act would put another person at risk of bodily harm that is neither trivial nor transitory. The objective standard asks not what was actually in the defendant’s mind, but what ought to have been in his mind, had he proceeded reasonably. See Creighton, at para. 111; and, R. v. Plein, 2018 ONCA 748 at para. 35.

[174] Trafficking in controlled substances is illegal for very good and easily understandable reasons. In many instances, such substances can be very harmful. They may be addictive. And their consumption may result in injury or death. There is no quality assurance with street drugs. These facts are widely known and understood.

[175] It is also widely known that there is presently, and has been for a number of years, including the year 2020, an opioid crisis in this country. I take judicial notice of that fact and the fact that far too many Canadians are dying of opioid overdoses. Fentanyl is at the center of that crisis. It is a particularly insidious and dangerous drug. Reasonable Canadians are well aware of the danger that fentanyl use presents.

[176] In my view, a reasonable person in Mr. Brazier’s position on the occasion in question, would have realized that supplying Mr. Glover with fentanyl – even on one occasion, let alone two – would have put Mr. Glover at risk of bodily harm that was neither trivial nor transitory.

[177] In the result, I am satisfied, beyond a reasonable doubt, that the fault element of unlawful act manslaughter has been made out and a conviction will be entered on count 1 of the indictment.

C. Boswell J.

Released: June 2, 2023