R. v. Silvera, 2025 ONSC 3858

R. v. Silvera, 2025 ONSC 3858

COURT FILE NO.: CR-20-00001144-00

DATE: 20250627

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

STANLEY SILVERA

S. Henderson, for the Provincial Crown D. Morlog, for the Federal Crown

T. Bariteau, for Mr. Silvera

HEARD: April 14, 15, 16, 22, 23, 24, 28, 2025

REASONS FOR JUDGMENT

christie j.

Overview

1Stanley Silvera is charged as follows:

1. THAT on or about the 8th day of June in the year 2019 at the Town of Aurora in the Regional Municipality of York did unlawfully cause the death of Christian QUEVEDO and thereby commit manslaughter, contrary to Section 236 of the Criminal Code.

2. AND FURTHER THAT on or about the 8th day of June in the year 2019 at the Town of Aurora in the Regional Municipality of York did traffic in substances, namely cocaine, fentanyl and U-47700, contrary to Section 5, subsection (1) of the Controlled Drugs and Substances Act.

2On the evening of June 8, 2019, first responders were called to and attended at an address on Stone Road in Aurora where they attempted life saving measures on Christian Quevedo who was vital signs absent. The life-saving measures were unsuccessful. Christian Quevedo was pronounced deceased at the residence. A post mortem examination conducted on June 10, 2019 has resulted in the opinion that the cause of death of Mr. Quevedo was “acute toxicity of fentanyl, U-47700, and cocaine”. The Crown alleges that Mr. Silvera sold Mr. Quevedo the drugs that caused his death earlier that day.

3This trial proceeded as a judge alone trial over the course of seven days. The evidence for the Crown included Mitchell Rath, the friend who found Christian Quevedo unresponsive, many first responders who attended and attempted to revive Mr. Quevedo, investigators, cell phone extractions and analysis from the phones associated to Christian Quevedo and Stanley Silvera, a forensic pathologist, a forensic toxicologist, and a police officer qualified to provide expert opinion evidence on the topic of drug trafficking. The defence called one witness who is suggested to have been involved in providing Mr. Quevedo a partial refund for the drugs he had purchased from Mr. Silvera.

4There is no question that Mr. Silvera trafficked something to Mr. Quevedo on June 8, 2019. There is no question that Christian Quevedo died from a drug overdose and that the toxicology determined the presence of cocaine, fentanyl and U-47700. The only real question is:

Did Stanley Silvera traffic this particular controlled substance to Christian Quevedo which admittedly substantially contributed to his death?

5The Crown argues that both the trafficking and the manslaughter charges have been proven beyond a reasonable doubt, as when one considers the entirety of the evidence, the only reasonable inference to be drawn is that the substance trafficked by Mr. Silvera to Mr. Quevedo is the only controlled substance that was found in both his wallet and his femoral blood. The Crown submits that the unlawful act is the trafficking and it is clear that this unlawful act caused Mr. Quevedo’s death.

6The Defence argues that neither the trafficking nor the manslaughter have been proven beyond a reasonable doubt, as there is more than one reasonable inference available on the evidence – reasonable inferences that are not simply speculation.

7It is agreed that this is a circumstantial evidence case, and the decision of this court will depend on the reasonable inferences that can be drawn.

Evidence

Evidence from Mitchell Rath

8Mitchell Rath was 28 years old when he testified. He was employed in recreation for a local government. He has an advanced diploma in Recreation and Leisure Services from Seneca College.

9Mr. Rath had known Christian Quevedo since about grade 9, which would have been about eight years at the time of these events. They met and were friends in high school and continued to be friends after school was finished. He described Mr. Quevedo as his best friend and said they were close.

10On June 8, 2019, Mr. Rath was living with his parents on Stone Road in Aurora. At that time, he would see Mr. Quevedo a handful of times per week, and they hung out pretty regularly at restaurants, bars, Mr. Rath’s house, or would just grab a coffee and sit in the car and chat. Mr. Rath stated that they would also exchange text messages, but that they were not really “big phone call people”. Mr. Rath hesitantly agreed that they knew what was going on in each other’s lives, but then stated that Mr. Quevedo did not “always love to do that….preferred sometimes to just have fun”. Mr. Rath did not agree that partying was solely the basis of their friendship but did agree that they liked to have a good time together. Mr. Rath agreed that, more often than not, he would do drugs with Mr. Quevedo.

11He agreed that it was not just him and Mr. Quevedo that would do drugs in their circle of friends, rather there were five to six other friends with whom they would consume cocaine.

12Back in June 2019, Mr. Rath agreed that he would sometimes go and buy cocaine for himself, although he stated that he would typically go with another person as he rarely if ever arranged for it on his own. Mr. Rath agreed that he had his own dealers that he would buy from, but these were through Mr. Quevedo. Mr. Rath agreed that he had, at least, two regular dealers. Mr. Rath agreed he had a dealer by the name of Derek that had stopped dealing a few months prior to June, therefore by June 2019, he had one dealer left. Mr. Rath explained that Colin and Tim were his dealers for mushrooms, and Rick was his dealer for cocaine, through Mr. Quevedo, although Mr. Rath agreed he could contact Rick on his own – in that he had a way to reach him. Mr. Rath agreed that he was not always with Mr. Quevedo when he was using or buying. Mr. Rath agreed that he had other friends, besides Mr. Quevedo, that he would use with. According to Mr. Rath, his five to six other friends that were using had their own dealers, and he did not know the dealers of all of his friends. Mr. Rath agreed that he could get a contact of a dealer through a friend and, in 2019, he had a number of ways he could get drugs. Mr. Rath agreed that he had purchased drugs, himself, numerous times in the past and he would also drive Mr. Quevedo to get drugs quite often. Mr. Rath agreed that drugs were “prominent” in his life at the time. He agreed that it was typical to purchase drugs contained in a Ziploc bag. Mr. Rath did not know about all of Mr. Quevedo’s drug contacts. Mr. Rath was aware that Mr. Quevedo had been using drugs for a few years by this point in 2019.

13Mr. Rath agreed that he had personally tried to acquire mushrooms – an ounce – earlier on June 8, 2019, or the day before, but was unsuccessful. He did not believe that he was with Mr. Quevedo when making these attempts. Mr. Rath agreed that he had reached out to Claudio, a friend who frequently had mushrooms, but he did not have any so Mr. Rath went to someone else. Mr. Rath confirmed the plan was to buy mushrooms from Claudio. Mr. Rath agreed that he testified at the preliminary hearing that Claudio did not sell drugs. He explained that this was the truth because Claudio was not a “drug dealer”, as in he was not actively selling on the street, but if he had some on hand, he would give them to his friends. Mr. Rath agreed that Claudio would not give the drugs for free. He did not consider Claudio as a drug dealer, but he agreed that he could buy drugs from him. Mr. Rath agreed that, if the person is a resource to get drugs, they can be both a friend and a drug dealer, although he stated that it was “semantics” to him. Mr. Rath was trying to contact Claudio for mushrooms because the plan was to get together with Mr. Quevedo, hang out, and do drugs, so he was trying to see what drugs he could get for the next day. Mr. Rath again confirmed that the only drug he attempted to purchase was mushrooms. Mr. Rath agreed that mushrooms can be referred to as “zoom” and he understood “re-upping” to mean that his dealer ran out of the substance and was getting more drugs.

14Mr. Rath and Mr. Quevedo communicated earlier that day, June 8, 2019, through text, to make a plan as to when they would meet up. As for what Mr. Quevedo was doing before they met up, Mr. Rath understood that Mr. Quevedo was with his sister, however, he did not know if he had met with anyone else earlier that day. This was not something they discussed.

15On that day, June 8, 2019, Mr. Rath was driving. He picked up Mr. Quevedo from his house. He did not remember the time, but he stated it was around lunch time. Mr. Rath believed that Mr. Quevedo had his backpack with him. Mr. Rath confirmed that he did not know if Mr. Quevedo had any drugs on him. They went to a restaurant – Ground Burger Bar, on Main Street in Newmarket – where they had a beer and lunch. As for how many beer he or Mr. Quevedo had at lunch, he did not remember. Mr. Quevedo seemed normal to him at lunch. He did not recall Mr. Quevedo looking unwell. There was nothing unusual about lunch. They then drove to get bubble tea. There was nothing unusual about that either. Their plan was to hang out for the day / evening because Mr. Rath was leaving for the summer the next day. He was moving up to the cottage in Flesherton to work for the Municipality of Meaford for the summer.

16Immediately after getting bubble tea, they went to meet “the dealer Anthony” to go pick up drugs. According to Mr. Rath, Mr. Quevedo arranged to purchase the drugs, but he was not certain how he made those arrangements. Mr. Rath could not say for certain how Mr. Quevedo contacted “Anthony”. As to how Mr. Rath knew of “Anthony”, Mr. Rath stated that Mr. Quevedo mentioned his name. Mr. Rath did not know how Mr. Quevedo and “Anthony” knew each other or when they first got into contact with each other.

17Mr. Rath testified that the type of drug he was planning to buy that day was cocaine. Mr. Rath had not bought cocaine from “Anthony” before. Prior to this day, Mr. Rath did not believe he had ever heard “Anthony’s” name before. He believed the first time he heard “Anthony’s” name was on June 8, 2019 from Mr. Quevedo. Mr. Rath testified that he did not know if Mr. Quevedo had bought from “Anthony” before, although Mr. Rath agreed that he told police on June 9, 2019, that he believed that Mr. Quevedo had bought from “Anthony” before and did not have any problems that he knew about. Mr. Rath agreed that what he said to police was the truth, agreed he was aware of “Anthony” before this date, and was aware that Mr. Quevedo had bought from him before. Mr. Rath said he was never present on these earlier occasions, rather this was just information provided to him. Mr. Rath had never met or spoken to “Anthony” and did not have any contact information for him. Mr. Rath did not recall telling police that he did not know the name of the person they met but agreed that if he said this to the police, that would not be the truth.

18Mr. Rath did not recall if he was aware of the quantity to be purchased. He did agree that the plan was to buy drugs for both of them to consume. Mr. Rath explained that, a lot of the time, Mr. Quevedo would just “pick up” and Mr. Rath would not be involved with it. Mr. Rath accepted that, if he told the officer on June 8, 2019 when he spoke to them at his house that he was aware that he was buying 1.5 grams, he would not dispute that today. At the very least, Mr. Rath believed he was aware that Mr. Quevedo was buying $140.00 worth, from having reviewed statements that he had made earlier, although without this being in an earlier statement, this is not something that he would remember. Mr. Rath did not believe that he contributed money for the drug purchase on this occasion.

19As for where the drug deal took place, Mr. Rath stated it was at an apartment complex off Leslie in Aurora – a pre-arranged meeting spot. Mr. Rath drove them there in his black Hyundai Elantra GT. He believed that they arrived at this location in the early afternoon. It was light outside. He testified that he knew which apartment complex to go to because he believed Mr. Quevedo would have provided him the address / information as to where to go. He parked in one of the outside parking spots out front. Mr. Quevedo was in the passenger seat – no one else was with them. In cross-examination, Mr. Rath agreed that this was an open public space, it was mid to late afternoon – around 3:30 pm, and it was broad daylight. Mr. Rath agreed that he had no problem driving Mr. Quevedo to get drugs and this was not the first time he had done so. Mr. Rath had also bought drugs himself and had no problem driving someone to do the same thing.

20After Mr. Rath parked the car, he testified that they waited around for a while for “Anthony” to get there. He did not have a sense of how long that was, but then stated that it was less than an hour. “Anthony” showed up – pulled up in a white Volkswagen SUV – and parked near them, to the passenger’s side of Mr. Rath’s vehicle. Mr. Rath recalled telling the police on October 19, 2019 that in his mind the SUV was black. He agreed that his memory was not 100%, and that he could not say which of his statements in relation to the colour was true or accurate. Mr. Rath did recall that the SUV had darkly tinted windows to the point where he believed it was a modification on the vehicle, and to the point that it was difficult to see inside the vehicle. He did not recall if there were other vehicles in the parking lot but did not recall it being a “very active space”.

21Mr. Quevedo got out of the car and approached the driver window of “Anthony’s” car. Mr. Rath did not recall Mr. Quevedo getting into “Anthony’s” vehicle. Mr. Rath testified that “Anthony” and Mr. Quevedo completed the deal and Mr. Quevedo got back into his car. When asked if he could see Mr. Quevedo interacting with the driver of that car, he said “I could tell that he was, but I wasn’t laser focused on what was happening”. As to whether he could see into the SUV, he stated, “A little bit. Christian was kind of in the way of the driver window, but the back window (of “Anthony’s” vehicle) was cracked a little bit.” There were no vehicles in between them. Both vehicles were “nose-in”. Mr. Rath was making these observations through his own passenger side windows, but he did not recall if those windows were open. Mr. Rath agreed that Mr. Quevedo was a larger man, probably double the size of Mr. Rath. Mr. Rath agreed that from where he was sitting in the driver’s seat it was very difficult to observe what was going on.

22When asked whether he was able to see the individual in the SUV, he stated, “A little bit, from the window behind that was open a bit.” He described the driver as a black male, medium to large build, with cornrows. Mr. Rath did not recognize that person. He estimated the distance from his vehicle to that SUV to be “at most a parking space”. It was then suggested to Mr. Rath that a slightly open driver side rear window would not assist with observations of the driver’s seat, to which he stated, “depending on your sight line, you could see in….I don’t remember the geometry of the parking lot.” Mr. Rath agreed that the SUV either parked next to his car or one spot over and they were facing the same way in spaces next to each other. He then explained that if the parking lot kind of sloped it might allow for observations, but he could not recall if this was the case.

23Mr. Rath agreed that he did not see the exchange or any hand-to-hand transaction. He was not able to estimate how long Mr. Quevedo was at the SUV. Mr. Quevedo then returned to Mr. Rath’s car and got in. Mr. Rath agreed that, by the time Mr. Quevedo got back into his vehicle, if he had received anything, that had been put away. Mr. Rath did not see where the drugs may have been put away. Mr. Rath did not see any drugs at all before getting back to his house.

24According to Mr. Rath, Mr. Quevedo paid for the drugs with cash. When asked if he saw Mr. Quevedo with cash, he stated that Mr. Quevedo frequently had cash on him, but then stated, “I can’t say I did no”. Mr. Rath agreed that he was being cautious not to make things too obvious as this was a drug transaction. He was not trying to stare at the SUV, but rather was minding his own business. He was not staring at the person in the SUV but rather observing through the corner of his eye and Mr. Quevedo was blocking his view. Mr. Rath agreed that he did not want the dealer to see him, but said he was not going out of his way to hide. Mr. Rath agreed that he had no direct interaction with the driver of the SUV that day and he had never met that individual in the SUV before. The driver of the SUV never got out of his vehicle.

25It was Mr. Rath’s understanding that the drug being purchased that day was cocaine, however, he did not recall specifically having a conversation with Mr. Quevedo about this issue. Mr. Rath agreed that he never confirmed with anyone what the substance was that was purchased that day. Mr. Rath had no discussion with Mr. Quevedo about purchasing morphine – either before or after this transaction.

26“Anthony” pulled away and they pulled away shortly after. Mr. Rath and Mr. Quevedo then went back to Mr. Rath’s house which was a couple of minutes from the apartment complex. According to Mr. Rath, they arrived back at the house in mid / late afternoon. When they arrived home, they went inside. He stated that they proceeded to the kitchen table, in the kitchen at the back of the house, to do some of the drugs they had purchased. No one else was home at the time.

27As to how they went about ingesting the drugs, he testified that Mr. Quevedo poured out two lines of it, and they used a rolled up monetary bill to snort it. Mr. Rath did not know where the rolled-up money bill came from. They did the drugs on the kitchen table (as opposed to the dining room table). Mr. Rath testified that they did not put anything down on the table before putting the drugs down. According to Mr. Rath, he, himself, did not do very much, estimating “less than an inch”. As for Mr. Quevedo, he stated that he did “more than that…probably double”. He could not estimate the weight of the drugs. As for where those drugs came from, he testified, “a baggie that he had had on him”. According to Mr. Rath, he did not see where Mr. Quevedo took the baggie from. When asked to describe the baggie, he stated “like a little Ziploc bag…like a dime bag”. As for how big the baggie was, he stated that it was “little…like an inch and a half by an inch”, which he also showed with his fingers. Mr. Rath agreed that this was like many baggies he had seen before – there was nothing unusual about it. When asked what Mr. Quevedo did with the baggie after he poured the drugs out for them to use, Mr. Rath stated that he was not sure and this was not something he was paying attention to. According to Mr. Rath, when he and Mr. Quevedo were at the kitchen table, Mr. Quevedo looked normal and was acting normal.

28Mr. Rath was not aware of Mr. Quevedo having any other drugs with him that day. Mr. Rath stated that, as for himself having other drugs at that time, he had some weed in his bedroom, but they did not consume any of it that day.

29Mr. Rath testified that he, himself, had used cocaine prior to this day. As to how often he would use cocaine at that time, he said it would be about once or twice a week, every two weeks. Mr. Quevedo had also used cocaine before and Mr. Rath believed that he used it more frequently, although he did not know how much more frequently. As for Mr. Quevedo using other drugs, Mr. Rath stated, “not regularly”, but sometimes he would use other drugs like mushrooms. As for Mr. Quevedo consuming alcohol, he stated that he would have a beer when they were out, but he never would have called him an alcoholic or that it was a problem he had any concerns about.

30After ingesting the drug that day, Mr. Rath stated that he felt slower than he would expect cocaine to make him feel. Prior to this when he used cocaine, it made him feel energetic and amped up. This day he felt “sleepier”. In cross-examination, he agreed that he did not feel much of an impact from the drug.

31After they did the drugs, they went outside on the back porch. Mr. Quevedo had a cigarette. He stated that they were on the back porch for “one cigarette worth of time…handful of minutes.” Then they went back inside. At that time, Mr. Rath decided to go lay down for a bit, so he advised Mr. Quevedo of this and then went to lay down in his bedroom upstairs. He stated that the time was late afternoon approaching evening. They were in the kitchen when Mr. Rath advised Mr. Quevedo he was going to take a nap. Mr. Quevedo looked the same as before. Nothing appeared off or unusual to him about Mr. Quevedo. Mr. Rath had no reason for concern. Mr. Quevedo did not complain of anything or say he did not feel well that he recalled. Mr. Rath did not recall Mr. Quevedo saying anything to him that day about not liking the drug. Mr. Rath agreed that not too much time had elapsed from the time they arrived home.

32Mr. Rath agreed that he previously told police that he went to bed around 6 pm, and that he would have had a better recollection when he gave this statement on June 9, 2019 as compared to trial. It was then suggested that they were home for an hour or an hour and a half before he went to sleep, to which Mr. Rath said the timeline was “fleeting”.

33Mr. Rath agreed that his real reason for going to take a nap was because he had a long night the day before. According to Mr. Rath, the intention was to get some rest and get some energy to hang out with Mr. Quevedo. Mr. Rath confirmed that he did not have any beer at his house before going to take a nap and he did not see Mr. Quevedo have any. Mr. Rath confirmed that his intention was to just lay down for a few minutes and then the plan was to hang out and DJ for fun.

34According to Mr. Rath, he and Mr. Quevedo did not do any other drugs at his house that day. Naturally, Mr. Rath agreed that he could not speak to what Mr. Quevedo was doing while he was asleep upstairs.

35Mr. Rath testified that he was up in his room for a couple of hours, and he did fall asleep during this time. The plan was for Mr. Quevedo to just hang out while Mr. Rath was laying down. Mr. Rath confirmed that there was nothing preventing Mr. Quevedo from leaving the house and coming back and that Mr. Rath would not have any problem with that.

36When he woke up, he was till feeling pretty slow and “groggy”. He called out for Mr. Quevedo to let him know he was awake. There was no verbal response, so he went down to check the kitchen and living room area. Mr. Quevedo was not there. Mr. Rath then checked downstairs. As he was going downstairs to the basement, he saw Mr. Quevedo on the couch. Mr. Rath called out his name and there was no response. As Mr. Rath got closer, he noticed “vomit or foam or something” obstructing his nose and he went up to him and kept calling his name and tapped him a couple of times to try to get a response, however, Mr. Quevedo was unresponsive. Mr. Quevedo was laying on his back and he looked “unwell”. Mr. Rath did not believe Mr. Quevedo was breathing based on the obstruction to his nose. As for what was around him on the couch, Mr. Rath stated that there were pillows and that he did not recall seeing anything else. Mr. Rath then went and found his phone, which was still on his nightstand table in his bedroom, and called 911. Mr. Rath stated that it was around 8:30 pm when he called 911 using his cell phone, which had the phone number 647-964-7439.

37While waiting for emergency personnel to arrive, he did not do CPR, even though he was encouraged to do so by the 911 call taker as it was important to act quickly, and he had training in CPR. He stated that learning it in a classroom is different than doing it in practice and he was not comfortable and did not feel safe performing CPR. He did not move Mr. Quevedo at all before emergency personnel arrived. He did not search Mr. Quevedo to see if there was anything else on him. While waiting, he was sitting on the stairs to the upper level.

38Prior to emergency personnel arriving, according to Mr. Rath, it did not appear to him that anyone else had been inside the house. In cross-examination, Mr. Rath confirmed that nothing was out of place, and he had no reason to believe that anyone had been in the house when he was asleep, although he agreed he did not know what went on when he was asleep. He agreed that if Mr. Quevedo opened the door to someone during this time, he would not be able to see this from looking at the state of the house, as in nothing would be out of place. In re-examination, Mr. Rath confirmed that in his previous experience purchasing drugs, drug dealers did not deliver to his house.

39Firefighters were first on scene, and he believed it took them about five minutes to arrive. Mr. Rath told them where to go to find Mr. Quevedo. The firefighters went where directed. Mr. Rath stated that he believed he just kept sitting on the stairs. He did not go back to the basement. As for how firefighters accessed the house, Mr. Rath stated that he unlocked and opened the front main door shortly after he made the call so that they could come right in. Mr. Rath explained that, apart from the front door, there was a door that entered into the garage and also a sliding door on the back porch.

40Mr. Rath did not recall who came next after the firefighters, but at some point, police officers showed up. He was not sure how long it was after the firefighters arrived. Mr. Rath agreed that he spoke to first responders, including police, but did not recall specifics or where he was at the time. Mr. Rath agreed there was no reason for him to withhold information. Initially, Mr. Rath did not recall whether he gave the police any property. When asked whether Mr. Quevedo had anything else with him, apart from his backpack, when he came to the house that day, Mr. Rath said “his wallet and phone”. As for where those items were at the time emergency personnel arrived, he stated that he did not recall. When asked what happened with Mr. Quevedo’s backpack, Mr. Rath stated that he believed police took it. Mr. Rath did not recall giving it to the police. He was then referred to his evidence from the preliminary hearing where he had stated that he provided it to the police when they asked for Mr. Quevedo’s belongings. He agreed he was telling the truth and that he did in fact at some point provide the backpack to the police. Mr. Rath did not recall opening the backpack and looking at the belongings.

41As for the wallet, Mr. Rath stated that he did not think he touched the wallet that day and did not think he provided it to the police. When asked whether he saw a bag of drugs in his wallet, he said, “I don’t think…I don’t recall…I’m sorry.” He was then referred to some evidence he gave at the preliminary hearing, at which time he stated that he saw a detective open the wallet after everything was over, but before that he never saw any drugs in Mr. Quevedo’s wallet. He confirmed at trial that he did not recall seeing any drugs in Mr. Quevedo’s wallet.

42While emergency personnel were attending to Mr. Quevedo in the basement, Mr. Rath stated that he was on the stairs, and then they asked him not to sit on the stairs anymore, so he sat in the living room for a while. Mr. Rath stated that he never went back into the basement. He agreed that at some point he went back to his bedroom when first responders were in the house attending to Mr. Quevedo. Mr. Rath stated that he contacted his girlfriend, who came so that she could drive him to the station, however he was not sure of the timing. Mr. Rath was in his bedroom when his girlfriend arrived.

43According to Mr. Rath, the police did not search his house or his person on that day. The police did not seize his cell phone or ask to look at any content on his cell phone. In re-examination, Mr. Rath confirmed that he provided his phone to the police, well after the fact, to be searched.

44Later that night or early morning of the 9^th, Mr. Rath went to the police station. As to how he was feeling at that time, he said, “Still not fantastic”. In cross-examination, Mr. Rath agreed that he made a number of statements to police, including speaking to more than one officer at his house (in addition to speaking to at least one firefighter at the scene), providing a video taped statement to police in the early morning hours of June 9^th at the station which was not under oath, and providing a video statement to police on October 19, 2019 at the station which was not under oath. On October 30, 2019, he returned to the station and spoke with Det. Fournier for the purpose of swearing his previous statements without reviewing his previous statements.

45According to Mr. Rath, the police never returned to search his house on any day.

46Mr. Rath confirmed that Mr. Quevedo did struggle with his emotions from time to time, and this had been happening on and off for a few years. Mr. Rath stated that Mr. Quevedo was not a person who wanted to share everything going on in his life. At this time in 2019, Mr. Quevedo had some family issues with his stepfather that he did not have a good relationship with. Mr. Rath confirmed that this effected Mr. Quevedo and Mr. Quevedo would talk about this from time to time. Mr. Rath confirmed that Mr. Quevedo was an emotional person and that these types of things would affect him.

Evidence from First Responders who attended Stone Road

47PC Alexander Horodnyk, working alone, was dispatched to a VSA call for service on Stone Road at 8:45 pm on June 8, 2019. Retired Fire Captain James Bolsby was also dispatched to the call.

48Fire Captain Bolsby and three other firefighters arrived at Stone Road. The firefighter driving remained in the truck. Captain Bolsby and his colleagues entered the front door where he met Mitchell Rath, who was about 2/3 of the way down the stairs coming from the second floor. Captain Bolsby asked where the patient was and what he had taken because the call was a possible drug overdose. According to Captain Bolsby, Mr. Rath said that he was downstairs, and did not say what Mr. Quevedo had taken, rather he had gone upstairs to lay down and had not seen Mr. Quevedo in two hours. Captain Bolsby described Mr. Rath as not forthcoming. Mr. Rath did not go to the basement. Fire Captain Bolsby went downstairs, where he found Mr. Quevedo on the couch, facing toward the back of the couch. No one else was downstairs. He and the other two firefighters rolled Mr. Quevedo over, removed him from the couch, laid him on the floor, and started the defibrillator protocol. Specifically, the two firefighters under his command hooked up the defibrillator and tried to get a shock. They got a “no shock” - meaning no shock could be delivered as there was no acknowledged heart rhythm that the defibrillator could shock. According to Captain Bolsby, Mr. Quevedo was not breathing and there was no heartbeat, therefore, Narcan could not be administered. Mr. Quevedo looked very pale with no signs of life. After the defibrillator process, the two firefighters under Captain Bolsby’s command started CPR.

49According to Captain Bolsby, there was nothing on the couch where they found Mr. Quevedo, however, he believed there was a beer bottle with smoke staining in it, which was right beside the couch on the floor and had to be moved so that they did not put Mr. Quevedo on top of it. Captain Bolsby did not recall if it was closer to the end where his head was or feet were. Captain Bolsby confirmed that firefighters did not search Mr. Quevedo’s person, and did not search the area around him other than observances for hazards in the area.

50Captain Bolsby went upstairs to ask Mr. Rath more questions and to try to find some information about the injured person, such as a health card or other kind of ID, because he knew that when paramedics arrived, they would ask for this. At that time, Mr. Rath was about halfway down the stairs leading to the second floor, sitting on the stairs, talking to a YRP officer. After getting some information from Mr. Rath, Captain Bolsby went back downstairs. At this point, Captain Bolsby radioed for the driver to come in. Paramedics were also arriving at this time.

51According to Captain Bolsby, on his third trip upstairs, he asked if Mr. Rath knew more information and asked about a wallet that he had observed in the kitchen on the dishwasher. Captain Bolsby had observed this wallet, sitting by itself, as he was going downstairs. Captain Bolsby asked if it was Mr. Quevedo’s wallet and he believed that Mr. Rath said yes. Captain Bolsby brought the wallet to the dining room where the officer questioning Mr. Rath could see him. Captain Bolsby was looking for identification, such as a health card, and when he pulled the health card out, a small package of white powder came out with the health card and fell on the table. He was not wearing gloves. The white powder was in clear plastic, like cellophane or a baggie. Captain Bolsby picked up the health card, told the officer he might be interested in this, went to the kitchen to wash his hands, and took the health card to the paramedics in the basement. As for the wallet and baggie, Captain Bolsby stated that he left the wallet and the baggie right beside it on the dining room table. The health card he pulled out was Mr. Quevedo’s health card.

52PC Horodnyk was the first police officer to attend Stone Road, arriving at 8:48 pm. He entered through the front door, walked down the hallway to the rear of the house, found a staircase leading to the basement, and made his way to the basement. He did not recall Mr. Rath at the staircase at that time. Downstairs, he saw a male on his back on the basement floor receiving medical attention – CPR – from fire and ambulance. He did not note how many firefighters and paramedics were on scene, although he accepted that making such a note would be best practice. PC Horodnyk did not assist with CPR.

53PC Horodnyk was in the basement for less than a minute, did not speak to anyone downstairs, and then returned to the main floor. Before he spoke to any witnesses, as he was in the entranceway that leads from the corridor to the dining room, he was approached by a firefighter – an older male – who had some items and who advised that he located the injured person’s wallet and found a transparent bag with white powder inside. It looked like the firefighter had come from the back – the kitchen. PC Horodnyk did not remember if the firefighter told him where the wallet was found and he had no note of that in his memobook notes. The notation in his report, that the firefighter stated that while performing CPR the wallet was located in one of his pockets, was not information he remembered at trial. The wallet had white residue on the outside, so rather than handling it, PC Horodnyk told the firefighter to place the wallet on a bag on the dining room table. He explained that it was in his custody but had not been seized. PC Horodnyk did not recall if the wallet and baggie were separated at the time or whether the baggie was in the wallet and he did not make a note of that.

54PC Horodnyk stated that, with the wallet and bag left resting on the dining room table, very close in time to having spoken with the firefighter and within about five minutes of arriving on scene, he located and started speaking to Mitchell Rath, who was in the front foyer where the staircase leads to the upstairs. While speaking to Mr. Rath, PC Horodnyk was between the foyer and the entrance to the dining room and was doing his best to keep an eye on where the wallet and powder were located. He spoke to Mr. Rath for about five or ten minutes. He was also waiting for other officers to arrive.

55PC Horodnyk confirmed that, in the discussion with Mitchell Rath, Mr. Rath provided information that he and Mr. Quevedo bought drugs earlier, he gave an amount purchased of 1.5 grams, he was not involved in facilitating the drug deal, that the purchase was from a male unknown to Mr. Rath, he could not provide a name or contact information but provided a description, he and Mr. Quevedo had done some of the drugs obtained, and that he did a small line and Mr. Quevedo did lines – plural. PC Horodnyk never asked to look at Mr. Rath’s phone. He explained that Mr. Rath stated that he had no contact so there was no reason to believe that he had contact information on his phone. PC Horodnyk did not search Mr. Rath and did not see any other officer do so. During the conversation, Mr. Rath was noticeably upset, but able to provide a timeline and was coherent.

56When Officers Ringler and Briard arrived, PC Horodnyk returned to his vehicle to get the evidence bags. According to PC Horodnyk, from the time the firefighter placed the wallet and baggie on the table to the time it was packaged was 10 or 15 minutes. PC Horodnyk testified that the only persons in the house at that time were Mitchell Rath and first responders, however, he admitted that he really did not know because he had not searched the house, for example, he did not go to the second floor to see if anyone else was there. PC Horodnyk confirmed that Mr. Rath was able to stay in the house, but he was not around things he was seizing and was not in the basement. He also confirmed that he did not have eyes on Mr. Rath the entire time and there was not an officer with him at all times.

57Det. Grant Fournier, the officer in charge, arrived on scene at 10:12 pm. He agreed that when he arrived, he took over the investigation. After speaking to Officer Ringler and Horodnyk briefly, he then spoke to Mitchell Rath. When he first encountered Mr. Rath, he was at the top of the staircase on the second level of the home, at the entry to a bedroom. Det. Fournier noted that another civilian was present at the time – Mr. Rath’s girlfriend – who he understood had just arrived. She was not interviewed by Det. Fournier. He did not write her name down. Det. Fournier inquired about property belonging to Mr. Quevedo, at which point Mr. Rath provided him with a backpack that he had upstairs with him. In the conversation, Mr. Rath gave information on the substance that had been ingested and how it was ingested, specifically that the iPad was used for that purpose. There were no medical concerns in relation to Mr. Rath. He was coherent and cooperative. Det. Fournier confirmed that no part of the second floor was searched.

58Det. Fournier then went to the basement. There were no medical personnel remaining when he arrived. Det. Fournier noticed a cell phone in close proximity to where Mr. Quevedo was laying. When Det. Fournier picked it up, the screen illuminated, and it opened to a text message conversation with a person named “Anthony”. Det. Fournier stated that he was not searching the basement, rather he was waiting for the photographer to come and document the area. Det. Fournier agreed that any search of the basement was only for items in plain sight in the area where Mr. Quevedo was found, which he agreed was different than a full search. To his knowledge, no one searched the basement.

59DC Mathew George, the forensic identification officer, arrived on scene at 10:24 pm. He was tasked with taking photos, doing seizures for forensics, and to assist the coroner with their investigation. The photographs taken were as things appeared after emergency personnel had come and gone. As for the cell phone found near Mr. Quevedo in the basement, there were photos taken of a chat which was present on the phone, with a person by the name of “Anthony”. Photos were taken at the request of Det. Fournier as he scrolled through the messages. There were also photos taken of a backpack and its contents, including an iPad that had been found in the backpack. The iPad appeared to have a white powder substance on it. This was not tested to determine what the substance was and no fingerprints were analyzed. DC George also noted that there was white powder on the fingernails of the deceased, however, this was not tested to determine the substance. DC George agreed that he did not walk through or photograph the entire residence. DC George did not seize anything at the scene.

60Det. Fournier instructed PC Horodnyk to seize the cell phone from the basement.

61PC Horodnyk also seized a backpack while at the residence. According to PC Horodnyk, an hour and a half or two hours after their initial conversation, Mr. Rath approached him and provided him with Mr. Quevedo’s black backpack. PC Horodnyk did not know where Mr. Rath obtained the backpack from. Inside the backpack there were a few items, including one black digital scale and an iPad in a white case. PC Horodnyk confirmed that there was nothing inside that linked this backpack to Mr. Quevedo. PC Horodnyk did not recall seeing white residue on the iPad on scene.

62PC Horodnyk did not recall seeing another civilian at Stone Road, specifically, Mr. Rath’s girlfriend. He remained at Stone Road until the arrival of the coroner which was 11:10 pm. While waiting for the coroner, his task was to maintain the scene until it was released by the coroner, and then to secure all evidence seized, transport it back to the station to be properly lodged, and then submit suspected drugs for analysis. PC Horodnyk did not search the house.

63After leaving the scene, but before arriving back at the station, PC Horodnyk went to a condo parking lot at 555 William Graham Drive in Aurora to check for video. He was there at 12:02 am. He understood from Mr. Rath and other investigators that there was a possible drug transaction that took place there and he wanted video corroboration. There was no video ever obtained.

64On June 9, 2019, back at headquarters, at 12:42 am, PC Horodnyk processed the baggie of white powder, preparing some for submission for analysis and some for bulk. The total quantity was 1.39 grams, of which .25 grams was sent for analysis and 1.14 grams was stored.

65The white iPhone which had been located near Mr. Quevedo was given to Det. Fournier, along with Mr. Quevedo’s wallet which was determined to contain an RBC card, drivers licence and Tim’s card, as well as cash totalling $183.50. The wallet was never swabbed.

66PC Thomas Ringler was on scene at Stone Road from 8:55 pm until 2:55 am. He testified that the coroner attended at 11:10 pm. PC Ringler agreed that he made notes of who was at the house to the best of his ability, although he agreed there was no one posted at the front door actually taking detailed notes of who was coming and going. He agreed that he might have missed some people, and it was not his specific task to monitor the front door. He did not note how many firefighters or paramedics were on scene. He did not go on the upper level of the house. He did not do an actual search of the house. He did not ask Mr. Rath for permission to look at his phone. He did not search Mr. Rath or Mr. Quevedo.

67Det. Fournier agreed that there was no officer posted at the front door to keep a crime scene log of who was coming and going, therefore, there is no record of such. Det. Fournier agreed that no officers did a full search of the house.

68Det. Fournier agreed that other officers were acting on his direction. DC George was only asked to take photographs and was not asked to take swabs of any substances. Det. Fournier agreed that the iPad appeared to have white powder residue on it, but that there were no swabs taken of the white powder because swabs are taken for DNA analysis, not drug analysis, and there would have been no investigative value to conducting a DNA analysis on the iPad. As for taking a sample of the substance, there was not enough substance to send for analysis as Health Canada has a minimum sample size to conduct analysis and this was not sufficient. Det. Fournier confirmed that there were no swabs taken of the kitchen table. He explained there was nothing police could do to confirm trace amounts of drug. The only thing that could be sent for testing and analysis were the drugs seized in the baggie and this was done.

69According to Det. Fournier, at 12:57 am on June 9, 2019, back at the station, he took a statement from Mitchell Rath. Det. Fournier testified that he appeared ill, that his skin was a grey colour, and part way through the statement he excused himself and vomited. Det. Fournier agreed that Mr. Rath had just observed his friend in this unresponsive state. Mr. Rath was coherent, cooperative, and answered all questions. He was not asked if he would consent to police looking at his phone. Even when Det. Fournier saw conversations of Mr. Rath trying to purchase drugs in or around that time, he did not go back to Mr. Rath to see if he would consent to police searching his phone and a search warrant was never obtained to see what conversations he had on June 8 about purchasing drugs. Det. Fournier agreed that the only time that Mr. Rath’s phone was almost searched was in October 2023 at the request of the defence, but due to the software, the police did not have the capabilities to bypass the security features. Mr. Rath’s phone was never searched at all in this investigation.

Certificate of Analyst

70A Certificate of Analyst entered as Exhibit 3 on consent confirmed that the sample of the substance taken from the baggie which was said to have fallen out of Mr. Quevedo’s wallet at Stone Road was found to contain: cocaine, fentanyl – calculated as the base 6.5%, U-47700 or an isomer thereof, a synthetic cannabinoid receptor type 1 agonist, and caffeine.

Cell Phone Evidence

71Admissions filed as Exhibit 1 establish the following facts:

1. On June 8, 2019, York Regional Police seized a white iPhone 6s (IMEI# 355399082590891) from the scene at Stone Road in Aurora, which belonged to the deceased – Christian Quevedo. The phone number associated with this phone was 289-894-3314. The subscriber name is Edna Giroux and the carrier is Rogers.

2. On October 8, 2019, York Regional Police executed a search warrant at Stanley Silvera’s residence, located at 16 Mike Boshevski Court, Aurora. During the search warrant execution, police seized a gold iPhone 7+ (IMEI #355836089997736), which belonged to the accused Stanley Silvera. The phone number associated with this phone was 437-224-6267. The subscriber name is Raheim Brown and the carrier is Rogers.

3. Phone number 437-224-6267 was saved as a contact in Mr. Quevedo’s phone as “Anthony”.

4. Police obtained a full extraction report for the phone number 437-224-6267. Police obtained a partial extraction report for the phone number 289-894-3314, including for the communications with the contact name “Anthony”, and other deemed relevant conversations, for the time period between January 1, 2019 and June 8, 2019.

5. When a call is placed or text is sent, the cellular phone uses the cell site providing the strongest signal. In most cases, it is the cell site which is closest to the cellular phone. There are some exceptions to the general rule. For example, conditions such as a high volume of traffic through the cell site, topography elevation, including tall buildings or inclement weather, will block the transmission of a cellular signal between the handset and the nearest cell site. If this should occur, the transmission will be handled by the adjacent site providing the best signal strength. There are usually more sites in urban areas, which can provide a better location of the cell phone, as opposed to rural areas where the cell sites have a much bigger footprint and are further apart.

6. Phone records only capture calls and texts made using the cellular network. The records cannot capture communications made using Wi-Fi (i.e., Snapchat or other applications).

72There is certainly some evidence that the phones belonging to Mr. Silvera and Mr. Quevedo were communicating at least a month prior to June 8, 2019. There were text messages between their phones on a few days in May 2019 and early June 2019. For example, in the late morning of June 6, 2019, Mr. Quevedo’s phone sends a text to Mr. Silvera’s phone to ask “how much u charge for a ball” to which the response is “260”. Later that night, there is a message from Mr. Quevedo’s phone stating “need that ball and can u put it in a bag thanks” and then the conversation seems to be about making arrangements to meet late on June 6, 2019 or early morning hours of June 7, 2019. There are also messages between Mr. Quevedo’s phone and Mr. Rath’s phone interspersed throughout this same time. In the late afternoon of June 7, 2019, Mr. Rath’s phone sends a message stating, “Claude has capsules that are .5gs and one of my buddies is gonna link me with his zoom guys”…. “150 for an o”…. Throughout the evening, there are texts between Mr. Rath’s phone and Mr. Quevedo’s phone about who is going to pay. On June 8, 2019, there are texts between Mr. Quevedo’s phone and Mr. Rath’s phone, such as

MR phone (12:34:33 pm): I’m taking to the dude now hes just re-upping then will contact me

There also seems to be discussion about when they will get together, as Mr. Rath’s phone sends a text, “lemme know when to come” and the response is, at 12:50:07, “ok just got out of the shower leave in 5”.

73On this same day, June 8, 2019, the day of Mr. Quevedo’s death, the following exchange takes place:

CQ phone (1:10:54 pm): Yo

SS phone (1:20:10 pm): Yo

CQ phone (1:20:23 pm): When r u around

SS phone (1:20:45 pm): At practice right now with my son

SS phone (1:21:37 pm): What you need

CQ phone (1:22:22 pm): 1.5

SS phone (1:23:42 pm): Yo do you like morphine?

CQ phone (1:25:01 pm): Never tried it.

SS phone (1:55:47 pm): Same as blow

CQ phone (1:57:17 pm): True

CQ phone (2:23:31 pm): How long is ur sons practice

SS phone (2:35:51 pm): I’ll be done at 3

SS phone (2:36:01 pm): So I can meet you around 3:30

CQ phone (2:36:12 pm): Ok

CQ phone (3:49:09 pm): U in aurora

SS phone (3:49:29 pm): Yah

SS phone (3:49:37 pm): Where you wanna mee

CQ phone (3:49:53 pm): Anywhere

SS phone (3:50:30 pm): Can you meet me at 555 williamgram

CQ phone (3:51:07 pm): When

CQ phone (3:59:16 pm): ?

SS phone (3:59:34 pm): In 10 min

CQ phone (4:02:36 pm): Ok

CQ phone (4:03:35 pm): Coming now should be 8 min or so

CQ phone (4:07:36 pm): 140

SS phone (4:07:58 pm): Yah

CQ phone (4:20:34 pm): Here

CQ phone (4:48:58 pm): Yeah bro I don’t like it

SS phone (4:49:20 pm): Ok I’ll exchange for you

CQ phone (4:51:35 pm): Ok thanks

CQ phone (4:51:42 pm): Burning my nose

SS phone (4:51:53 pm): Ok

74Deborah McKnight, an analyst with the YRP at the time, testified about the phone toll analysis that was conducted in this matter. A map prepared by Ms. McKnight shows the cell site locations, as well as the address of the alleged drug buy, the residence of Stanley Silvera, and the Stone Road address.

75As for communication between the phones belonging to Stanley Silvera and Christian Quevedo on June 8, 2019 and the tower locations used by the phone associated to Stanley Silvera, there appears to be no great disagreement. The text messages start at 1:10 pm, initiated by the phone belonging to Christian Quevedo. There are various messages back and forth up to and including 4:07 pm. At 4:11 pm, there is a call from the phone belonging to Mr. Quevedo to the phone belonging to Mr. Silvera. The call was 20 seconds in length. The cell site used by Mr. Silvera’s phone was located at St. John’s Sideroad and Leslie. There was then a further text from Mr. Quevedo’s phone to Mr. Silvera’s phone at 4:20 pm. There were two calls from Mr. Quevedo’s phone to Mr. Silvera’s phone at 4:30 pm with no cell site noted. At 4:31 pm, there was a call from Mr. Silvera’s phone to Mr. Quevedo’s phone which lasted 98 seconds and the cell site used by Mr. Silvera’s phone was located at 5 Scanlon Court, Aurora. There were further text messages between the two as set out above.

76Det. Fournier agreed that there were phone calls to and from Mr. Quevedo’s phone that day with individuals other than “Anthony” or Mr. Rath, however, he did not conduct any further investigation on those persons. Det. Fournier clarified that any investigation done would have been limited to the content of the messages on the phone but there was no ancillary investigation such as no additional production orders or interviews conducted. He agreed that for a phone call there would be nothing to observe from the records, but he still did not contact these people.

Toxicology and Pathology

77The post mortem examination was conducted by Dr. Christopher Ball on June 10, 2019. His report, dated September 30, 2019, concludes that the cause of death was acute toxicity of fentanyl, U-47700, and cocaine.

78Dr. Ball relied on the toxicology results and report of Dr. Nathalie Desrosiers, which was adopted by Dr. Trevor Beaudoin. The toxicology results analyzed femoral blood (blood from a peripheral site – from a vein at the top of the leg), heart blood (blood drawn from a central site), and urine (biological waste product) for the presence / absence of drugs and / or poisons and found the following:

Femoral blood: fentanyl – 4.6 ng /mL (+- 0.4 ng/mL); U-47700 – < 3.1 ng/mL; cocaine – 0.016 mg/L (+- 0.001 mg/L); benzoylecgonine – 0.29 mg/L (+- 0.03 mg/L); cocaethylene – tentative; ethanol – not detected.

Heart Blood: cannabinoid metabolites – not detected

Urine: ethanol – not detected.

79Dr. Beaudoin explained that the concentrations are reported with +/- measurement uncertainty (MU), unique to each drug, which represents the variability of the analytical method with 95.45% confidence. For example, with respect to the fentanyl in this case, the true target value of the drug is 4.6 ng/mL and with 95.45% confidence he can say it is within a range of 4.2 to 5.0 ng/mL. He explained that each substance has its own measurement uncertainty.

80Dr. Beaudoin stated that the methods used to screen for drugs in this case can look for over 700 drugs in the femoral blood, which include pharmaceutical drugs, prescription drugs, over the counter drugs, as well as illicit drugs used recreationally. A targeted analysis was also performed which allow them to quantify the concentration of drug in the blood at the time the sample was collected. As for the heart blood, it was only tested for the presence of cannabinoid metabolites – none of which were detected. As for the urine, the test performed was Headspace GC-FID, which looks only for the presence of alcohol – none of which was detected.

81As for the amount of fentanyl detected, he stated that this means that fentanyl was taken prior to death. He could not say when or how it was taken. He could not say whether this was a person who was tolerant of this substance. He could not say what type of effects the person may have experienced because the person may or may not be tolerant to the drug. He explained that, in the context of a post mortem investigation, the concentration is best considered together with all other evidence provided by a medical examiner because, while the concentration may be associated in the scientific literature with death, that is more likely in an individual naïve to the drug – one who has never taken it – and was injecting the drug – neither of which he could say based on a single time point snapshot concentration in a post mortem sample. In the scientific literature, when fentanyl is the only drug detected and the pathologist determines that drugs were the cause of death, concentrations as low as 3.6 ng/mL have caused death, so this concentration could be associated with death. However, there are concentrations much higher that have been found in living individuals, such as impaired driving, as well as individuals that have died where the pathologist will say the drug is an incidental finding to death. He explained that there are many variables, and he does not have the expertise as a medical examiner or pathologist. As for the typical effects of fentanyl on the human body, he stated that it produces central nervous system depressant effects, including reduced consciousness, from dizziness and sleepiness to a coma, and can also produce euphoria. Side effects are typically reduced consciousness to varying degrees depending on the dose, how it is taken, and tolerance.

82He explained that the concentration of a drug can increase or decrease in the blood following death – post mortem redistribution – depending on the drug, its characteristics, and how frequently the drug is taken. When the drug is taken frequently, it is stored in different tissues in the body and then, after death, the drug leeches out of those tissues into the blood. With respect to fentanyl specifically, Dr. Beaudoin did not agree that the amount of fentanyl necessarily increases after death. He stated that it is not a drug typically associated with a lot of post mortem redistribution, the range being below 1 to just above 1, with the average being 1.2 to 1.5. With this average in mind, he agreed that the concentration may be 1.2 ng higher than it was at the time of death, but he explained that this is usually seen when taken from the heart blood. When it is taken from the femoral blood, there is not as much post mortem redistribution, unless the person was on patches, long-term, used medically. Where drugs are snorted, the redistribution will be less likely. He agreed that there is no hard and fast rule and this cannot be accurately predicted. Dr. Beaudoin explained that femoral blood tends to be the concentration that is more in line with the concentration at the time of death.

83As for U-47700, he described this as a synthetic opioid and research chemical that is not approved for medical use in humans in Canada. He described it as a novel psychoactive substance, that it comes and goes within testing at the CFS, and that they have not seen it for some time. As for its typical effects on the human body, he explained that, as an opioid, it tends to produce effects that are central nervous system depressant in nature. Depending on concentration in the blood and how often a person has been exposed to the drug, it can produce euphoria and a range of reduced consciousness from sleepiness and dizziness to a coma. He confirmed that the detected blood concentration of U-47700 was less then 3.1 ng/mL which means it was less than the lowest concentration that they could quantitatively report but higher than the lowest cut off value. The scientific literature is limited based on the fact that it is a research chemical and there have not been extensive studies on it. He confirmed that the detected blood concentration of U-47700 was less than that associated with fatalities (referring to concentrations in the range of 242 ng/mL to 382 ng/mL having been found in four deaths in which U-47700 was the only toxicologically significant finding), however, he acknowledged that there was limited scientific literature available.

84Dr. Beaudoin was asked about the combination of fentanyl and U-47700 and whether it was significant. He explained that the combination of drugs of the same class has the potential to produce more effects, central nervous system depressant effects, such as respiratory depression, which might be an important aspect in a death investigation. However, because the concentration is so low and there is so little scientific evidence on U-47700, it is very difficult to predict what that combination would mean in any individual.

85As for the amount of cocaine, these concentrations have been associated with recreational use. He could not say the timing of when it was taken or the dosage taken. As for whether this concentration of cocaine could be fatal, he stated that cocaine does not typically have a fatal reference. Where cocaine is linked with fatalities, it is usually associated with effects on the heart. Any concentration has the potential to be fatal. He said it will depend on the other aspects of the death investigation as to whether or not it is important. He explained that a person can develop tolerance for cocaine, but its mostly for the psychoactive effects of the drugs – the subjective effects. However, for the effects that may cause death – cardiac effects, there is a lot less evidence to suggest there could be tolerance developed. As for the effects of cocaine, subjectively, it tends to be euphoria, increased mental alertness, and energy. As for side effects, it can include muscle tremors and inability to focus on tasks – depending on the amount taken. Cocaine is a psychoactive drug with its effects being primarily played out in the brain, increasing the release of different neurotransmitters, and producing the effects described. Physiological effects can include increasing heart rate and blood pressure.

86Dr. Beaudoin described benzoylecgonine as a breakdown product of cocaine – a metabolite of cocaine – that can be formed both in the body or through degradation of cocaine during storage. Benzoylecgonine, itself, does not have any activity on the human body but is a marker of the use of cocaine. In this case, because of the storage conditions and the time frame between receiving the samples and the analysis, he did not feel it was a large risk that there was a significant breakdown in storage. He did agree that it can breakdown in the body from the time of death until the time a sample is taken – the post mortem interval. He opined that the detected blood concentrations of cocaine and benzoylecgonine in this case were within a range associated with past recreational cocaine use. He could not pinpoint a time frame of when the cocaine was taken or how much.

87As for cocaethylene, Dr. Beaudoin described this as a metabolite of cocaine that can form in the liver in the presence of ethanol. In this case, the presence of cocaethylene was not confirmed and ethanol was not detected.

88As for the mix of fentanyl, U-47700, and cocaine, cocaine is a central nervous system stimulant, whereas the opioids tend to produce central nervous system depressant effects. However, he could not say that one would negate the other. It would depend on the potency of the drugs, whether they are taken at the same time, how the drugs were taken, and the history of the person taking the drugs, all of which will play a part on the subjective effects and potential side effects, which are unpredictable. Dr. Beaudoin could not predict the effect of this mixture. He could not comment on how long it would take for this mixture to be fatal, if in fact it was fatal.

89According to Dr. Beaudoin, the addition of caffeine would be toxicologically insignificant unless in an extremely high concentration. He did not recall it being detected in this case, despite the fact that one of the screens they conducted can identify caffeine.

90Morphine, not detected in this case, like fentanyl, is also an opioid. Fentanyl is about ten times more potent than morphine. Effects of morphine are similar to fentanyl, but it would take more morphine to produce those effects as compared to fentanyl.

91As to how long ethanol will be present in the blood, it depends on the dose that is taken and the metabolism of alcohol by the individual which has a large range in a living individual. In a deceased individual, it could depend on how a person died, as drugs can still be metabolized in the body if the blood is still circulating. The amount of substance taken by someone will impact how long the substance will be found in the blood – the more they take the higher the concentration and the longer you might be able to detect it, however, it also depends on the characteristic of the drug, as each drug has a half life – how long it takes to reduce the concentration in the blood. Typically, you can detect drug concentrations to five of those half lives, depending on the half life of the drug, specific for each drug, you can see it for longer or shorter periods of time.

92There are individual factors that can affect the half life of a drug in an individual and the range can be significant for certain types of drugs, while for other drugs it is a narrow range. There are individual factors that play a role in how fast a drug is metabolized. Dr. Beaudoin did not agree that, comparing morphine and fentanyl, morphine would stay in the system for a less amount of time. He said that the half life does not depend on the potency or necessarily how much of the drug you take. He believed that morphine and fentanyl have similar half lives, but fentanyl has a wider range in its half life. For example, he believed they are both around 3-4 hours, but in some individuals, fentanyl can take up to 12 hours to reduce its concentration by half. Dr. Beaudoin explained that, if there is less drug taken, it requires less half lives to get to a point where a test would not be able to detect the drug, but he stated this was not dependent on whether the drug be morphine or fentanyl, but rather dependent on the dose of the drug taken.

93Dr. Beaudoin explained that, when the blood is able to pass through the organs, typically the liver, and there is activity of the enzymes, the body can metabolize a drug. After you die, it is still possible, so long as there is activity of the enzymes, to get some metabolism but not for a long period of time – typically less than the half life of most drugs. This would depend on the drug, and with these drugs found in this case, that is unlikely, with the exception of cocaine which can breakdown even in a dead person or in storage. With alcohol, after death, the amount of alcohol you died with is what you maintain on board, unless storage conditions indicate that it was produced post mortem. It was not a factor in this case as it was not detected. Dr. Beaudoin was not aware of fentanyl breaking down in the body after death. As for U-47700, there is limited scientific literature, but based on the class of opioid, typically they do not break down after death.

94Dr. Beaudoin agreed that there are a lot of unknowns in determining how long a substance will be present in the blood, and that is why he cannot say when it was taken or how much was taken, because he cannot accurately predict, based on a single time point concentration, what was the starting point of the drug in the system.

95Dr. Beaudoin agreed that he can only detect the drugs they have the capabilities to detect – which he stated are a lot – and if something was present and metabolised and eliminated from the body and went below the capabilities of the test to detect then they would not be able to detect it or report it.

96As for the urine testing, the only substance tested for in this case was ethanol. There was no testing to determine whether there were other drugs present. He explained that this is because it was a pooled sample and they would not be able to say that the substance was in the blood at the time of death. Drugs in the urine do not have any effect on the human body. If something is found in the urine but not the blood, it just means prior use, but it could be in a much greater time frame than would be relevant to a death investigation. It may have shown other drugs that had been used that were no longer in the blood, but he would not be able to provide a time reference as to use and there would be no interpretive value from a toxicology standpoint. In general, the urine is a pooled sample, so drugs / ethanol pool in the urine over time and can be detected in the urine for longer periods of time, as opposed to blood, which is a snapshot. This is so unless the substance was taken so recently that it did not accumulate in the urine.

97As stated above, Dr. Christopher Ball, the forensic pathologist, took this toxicology information into account in forming his conclusions. He also noted the following:

1. A standard external examination was performed with findings as follows:

i. Christian Quevedo was 5’10” and 290 lbs, with a body mass index of 41.6. Dr. Ball agreed that this would be considered Class III obesity (formerly morbidly obese), as normal is between 20 and 25.

ii. In describing the eyes, he stated that the conjunctivae (inside of the eyelids and around the eyeball) were congested, but free of petechiae (small dot-like hemorrhages). Dr. Ball explained that conjunctivae being congested means that he could see blood vessels in the eyes which were a little darkened by blood, however, this was not a significant pathological finding in this case, as he attributed this to the fact that Mr. Quevedo was overweight. He stated that sometimes when people have a larger abdomen, the pressure and weight of the abdomen can cause congested conjunctivae.

iii. There was foam plume filling and overflowing the endotracheal tube. Dr. Ball explained that there had been a tube placed by first responders into the airway to facilitate artificial respiration to be performed during life saving measures. He stated that there was a frothy foamy fluid in the tube, which was also seen in the lungs. Dr. Ball explained that when this frothy fluid is seen emanating from the airway, including in the endotracheal tube, it can be a hint to the possible cause of death. He stated that this is commonly seen in four settings: 1) death due to drug overdose, 2) deaths due to drowning, 3) deaths with seizure, 4) deaths when there is an element of heart failure.

iv. There were no drugs or anything of significance found on Mr. Quevedo’s body. He listed the clothing and effects found in his report. He stated that, if he found it, he listed it – the report provides an exhaustive list.

v. Dr. Ball attributed a puncture site at the crook of the left elbow and on the left shin as indicative of medical intervention, such as where blood is taken or where fluids are given. Dr. Ball confirmed that he was looking for non-medical puncture sites and that he noted no such signs of injury.

2. Dr. Ball confirmed that there was no trace evidence collected, such as fingernail clippings, pulled hair from the head, or a swab of blood to generate a DNA profile for identification purposes.

3. A targeted internal examination, including the chest, was performed. Dr. Ball elected to conduct a targeted internal examination as, in this case, there was no indication of suspicion of criminality based on the information available to him and the CT images. He confirmed that police did not attend this autopsy, although he stated that police are always welcome to attend if they choose. He agreed that when there is no suspicion of criminality, autopsies are usually more targeted. He clarified that if the police are not in attendance, he makes the determination as to whether to do a targeted or full internal examination. He also stated that, for him, if the police are in attendance, he would typically do a full internal examination. He also stated that, if he believes he will end up in court, or believes charges will be laid, he would do a full internal examination, but in this case, he did not have that information. The information he had was that drugs were used shortly before death, and in those circumstances, it is common to examine in a targeted manner as was done in this case.

4. Dr. Ball stated that blood samples are taken as soon as the body is opened. The samples are put into tubes with preservative and then submitted to CFS by support staff.

5. His targeted internal examination focused on the organs of the chest and neck, including the trachea, bronchi, hyoid bone, lungs, and heart. He confirmed that he did not examine the kidneys, which might provide evidence of hypertension if it existed. The following findings were of note:

i. The heart weighed 460 grams, which was said to be enlarged, but otherwise was a normal configuration. Coronary arteries had no narrowing or hardening. Dr. Ball explained that the enlargement of the heart, on its own, increases the risk of sudden fatal cardiac arrythmia. Sometimes at autopsy, where no other explanation for the cause of death is found, other than enlargement of the heart, this is given as the explanation. As for determining whether a heart is big or not, Dr. Ball explained that there are tables, where the age and height of the individual leads to a percentile weight being given. The heart of Mr. Quevedo, being 460 grams, the weight of his heart would be greater than the 99th percentile, meaning his heart was larger than 99% of the population, accounting for his age and height. The tables used do not account for weight of the individual. He explained that, when someone is obese, the heart works harder and therefore gets bigger, however, this is not a physiologic enlargement, this is a pathologic enlargement. Common causes of pathologic enlargement of the heart include obesity, hypertension, and stimulant use. There are also natural diseases that can cause an enlarged heart, but none were seen here. There are also physiologic enlargements of the heart, such as a marathon runner, who may have a healthy enlargement of the heart.

ii. As for why Mr. Quevedo’s heart was enlarged, he opined that, given the information he had, this could be attributed to his body mass. However, he opined that it could also be as a result of drug use, specifically a habit of using stimulants. Dr. Ball was not aware whether Mr. Quevedo suffered from hypertension and confirmed that he did not look at the kidneys to investigate this. He stated that this is another possible reason for the enlarged heart. He was not aware of any genetic cardiac disease that could account for the enlarged heart. Dr. Ball confirmed that the size of his heart was a health risk.

iii. There was concentric left ventricular hypertrophy. He explained that this meant that the wall of the left ventricle was too thick. As to any medical significance, he stated that the heart was working harder for some reason, and the risk of sudden fatal cardiac arrythmia was increased.

iv. The trachea and bronchi, the air tube from the mouth to the chest which then forks left and right to each lung, were filled with foamy fluid.

v. The lungs were 870 grams (right) and 680 grams (left). There was froth fluid in the airways. Dr. Ball described the lungs as heavy which he attributed to edema (fluid) and congestion (backed up blood). He explained that the edema and congestion in the lungs was a common result of blood that backs up when the heart stops beating. He explained that the normal weight of lungs is 200-300 grams. Dr. Ball confirmed that most normal healthy lungs do not have froth or fluid. When this is seen, it raises possible causes of death, the most common being toxicologic cause of death. However, he acknowledged that other common causes of death with this seen in the lungs would be drowning, seizures, and heart failure. In this case, Dr. Ball had no information to suggest drowning, and he was not aware of any background of seizures or history of heart failure, with the exception of the enlarged heart.

vi. When asked whether it was possible for Mr. Quevedo to have congestive heart failure, he stated that this usually arises after years, and would be extremely rare in a man of 23 years old. If Mr. Quevedo were having natural disease in his heart at 23 years old, he would expect it to be congenital or inherited not an element of heart failure. He explained that heart failure is often as a result of atrial fibrillation, ischemic heart disease, many years of untreated hypertension, or many years of alcohol abuse.

vii. As for the lungs being different weights, he stated that it was not significant in this case, and that different weights are common, given that the right lung has three lobes and the left only has two.

6. Ancillary investigations were done, including toxicologic analysis and microscopic examination of selected tissues of the chest. The following findings were of note:

i. As for the heart, there was cardiomyocyte nuclear hypertrophy. Dr. Ball explained that there was an enlargement of the nuclei of the cells of the muscle of the heart. This enlargement occurs when the heart is working harder or in cases of enlargement of the heart. A common cause is hypertension or chronic use of stimulants.

ii. The lungs were congested, meaning there was a lot of blood in the blood vessels. Dr. Ball explained that when a person dies the blood starts to settle, even in the lungs. In this case, the posterior parts of the lung, closer to the back, were darker red, with the anterior lungs being more of a pink colour. He described this as a normal post mortem finding.

iii. As for toxicology, Dr. Ball explained that both femoral and heart blood are collected as these are different in their proximity to the liver and it can change concentrations seen in toxicology. Femoral blood tends to give a better idea of concentrations at the time of death.

98Based on the information available, Dr. Ball’s summary and opinion was stated as follows:

1. This 23 year old man was found unresponsive in the basement a few hours after having reportedly consumed cocaine. Despite life saving efforts by emergency services personnel, he died.

2. His medical history was not reported. (Dr. Ball confirmed that he did not know anything about his medical history, such as whether there was a history of seizures, sleep apnea, hypertension.)

3. Post mortem examination revealed heavy edematous and congested lungs with foam in the airways and emanating from the endo-tracheal tube. His heart was enlarged. Evidence of traumatic causes of death was not present.

4. Toxicologic analysis of post mortem blood revealed a potentially fatal concentration of fentanyl, U-47700 and cocaine with its metabolite benzoylecgonine. Tolerance of opioids depends upon toxicity. Fentanyl is approximately 50-100 times more potent than morphine. The drug U-47700 is a synthetic opioid. Fentanyl and U-47700 can act synergistically. Recreational and fatal concentrations of cocaine overlap; cocaine can cause death by a sudden fatal cardiac arrhythmia. Cocaine is susceptible to degradation in storage.

5. In consideration of the scene, circumstances and post mortem findings, this man’s death is attributed to acute toxicity of fentanyl, U-47700 and cocaine.

99Dr. Ball explained that fentanyl and U-47700 are depressants which slow things down, including a slowing effect on the cardiorespiratory centre of the brain and heart. When breathing or heartbeat slows too much, fluid builds up in the lungs and airway, and life cannot be sustained. As for the toxicity of these substances, it depends on the person’s tolerance.

100As for cocaine, Dr. Ball explained that it can cause death. As a stimulant, it speeds things up, causing the heart to speed up. When the heart speeds up, this interferes with the heart’s function as to how it goes from one beat to the next. This increases the risk of sudden fatal cardiac arrythmia. This is a different mechanism of death than one seen from the depressants. Dr. Ball agreed that the cocaine amount was relatively minimal, but he included it in his cause of death because he could not exclude the possibility that cocaine contributed to the death.

101As for which substance(s) caused death, Dr. Ball stated that it was not possible to say – this is “unknowable”. Cocaine on its own can cause death. Fentanyl and U-47700 can on their own cause death. He stated that all of the substances might have contributed to death.

102When asked whether the enlargement of the heart played any role in death, he stated that this increases the risk of sudden fatal cardiac arrythmia, and when any other stressors are introduced, there is more risk. He opined that the enlargement of the heart may have contributed, but in his opinion, this was not the sole cause of death.

103When asked how quickly this combination of drugs could cause death, he stated that he could not say and it would depend on the person. He then stated that he would think minutes to hours would be the best measurement, not days, but that he really did not know.

104In cross-examination, Dr. Ball confirmed that he cannot make a definitive diagnosis of sudden fatal cardiac arrythmia at autopsy because the heart is no longer beating. It is not possible to see a rhythm at the time of death unless the person has a pacemaker. He stated that he would provide this as the likely cause of death, in circumstances of an enlarged heart, in the absence of other injury or illness. In this case, Dr. Ball clarified that the enlarged heart or the left ventricle thickness was a potential cause of death, however, it was not his opinion of the cause of death in this case. He explained that, in his opinion, the cause of death was the drugs in the system. He further explained that he looks at all the data to point to one cause or another, considering the strength of each possible cause. He explained that there is a stratification in terms of classes of causes of death as follows: 1) abnormality necessarily fatal (head removed); 2) disease or injury fatal in the natural course without adequate medical intervention; 3) change that can be chronic and stable but can cause sudden death; 4) changes that do not necessarily cause death; 5) nothing. He explained that, in this case, the enlargement of the heart would be class three – stable chronic disease that can cause death suddenly. However, the presence of drugs are between class two and three. The drugs being a class two, the heart being class three, the drugs being more severe, the cause of death becomes toxicity of drugs – most likely to have caused death.

105Dr. Ball agreed that arrythmia could have contributed to death but, in his opinion, arrythmia did not cause death. Dr. Ball explained that arrythmia is a mechanism of death, as opposed to a cause. He stated that fatal arrythmia is often how people die at the end, but the cause is what triggers that. He explained that, in his opinion, the drugs are the injury that brings about the mechanism of fatal arrythmia. He explained that he would never state arrythmia as the cause of death. There is a reason for the arrythmia and that is the cause.

106Dr. Ball agreed that if he had examined the kidneys and found signs of hypertension, this could explain an enlarged heart, however, he stated that this would not alter his conclusion on the cause of death in this case.

Search of 16 Mike Boshevski

107Ultimately, the investigation led police to 16 Mike Boshevski Court, Aurora, agreed to be the residence of Stanley Silvera. A search warrant was executed on October 8, 2019. By that time, Mr. Silvera was in custody.

108DC Kevin Murray was involved in the search. He testified that the ERU team made entry at 2:53 pm. The only person home was an elderly female. The search started at 3:35 pm. DC Murray took video and photos. He noted the following things located:

1. In the office set up on the main floor – documents and an ID badge in the name of Stanley Silvera. There were also documents in the name of Stanley Silvera with an address of 66 Payne Crescent, Aurora and the year 2018.

2. In the master bedroom upstairs – a gold and white coloured iPhone on the table next to the bed, and a piece of mail with Stanley Silvera’s name and the address of 66 Payne Crescent, Aurora, being forwarded to 16 Mike Boshevski Court, Aurora. Ultimately, a warrant was obtained and executed to search the phone.

3. Safe in master bedroom closet – cash bundled up with elastic bands - $5000.

109There were no drugs, no clear small bags, no drug paraphernalia, no digital scales, no packaging, no cutting agents, and no debt lists found.

Expert Evidence Regarding Drug Trafficking

110Det. Kevin Selwood was qualified to give expert opinion evidence on methodology and coded language associated with cocaine, fentanyl, and opioid trafficking, including its subculture, consumption, pricing, and distribution.

111In describing fentanyl, Det. Selwood stated that it is a powerful synthetic opioid, that comes in various forms, including patches, liquid, pills, and more recently powder. He explained that fentanyl pills are not made in the pharmaceutical world, rather it is in liquid or patch form. He explained that the powder has been introduced from China and Mexico, but Canada has also become a producer. A pill press is used and then the pills are marked as Percocet or oxycontin. It has a very profound effect described by users, including that it takes pain away, creates a tremendous feeling of euphoria, provides a lethargic warm sensation, and creates a nod or drowsiness stage sometimes leading to sleep. He stated that it results in overdoses. It is 50 to 100 times more powerful than morphine depending on its purity. It is not common to get pure fentanyl in the GTA, rather it is normally cut by a cutting agent or another drug. Fentanyl has over 1200 analogues – different forms and potencies. Naloxone is the drug administered to someone who has ingested fentanyl, which allows oxygen to return to the brain to get breathing and heart rate back up. Fentanyl is consumed in a number of ways, including smoked, snorted, injected, inhaled, with the most common in powder or rock form, being heated on tin foil, turning it to liquid, and inhaling it through a straw or another device into the mouth. One could also use a glass bottle. The typical amount to consume is 1/10 to 2/10 of a gram, depending on the user and the potency. Users tend to purchase smaller amounts because it is expensive, and a person may not want to take too much. It is addictive. The heaviest user Det. Selwood has seen would buy a half gram at a time and would share it. Det. Selwood explained that powder fentanyl is naturally white or off white, similar to other substances like cocaine or methamphetamine, and can be easily presented as something else or cut with other drugs similar in appearance and texture.

112As for amounts fentanyl is being possessed at for drug trafficking, Det. Selwood explained that fentanyl is different than other drugs because of its potency. It can be as low as single digit grams. He stated that it depends on trends. It will also depend on other indicia.

113As for factors affecting the cost of fentanyl, Det. Selwood explained that it is purity and supply and demand. He explained that pricing has gone down as it has become more prevalent. Det. Selwood also explained that, closer to cities, the price is less, as opposed to more remote communities. In Northern Ontario, the cost can be over $400 per gram. In 2019, the average price for a gram was somewhere between $180 to $300, however, he acknowledged that pricing has changed.

114The most common cutting agent for fentanyl is caffeine. It allows the person to ingest it more quickly, as it allows the drug to vaporize more quickly at a lower temperature. He explained that users of opioids do not want to wait. They buy it, drive around the corner, and use it. The withdrawal is profound. They buy in smaller amounts because they need it in their system immediately.

115Det. Selwood described morphine as a synthetic opioid prescribed for pain which has been around for a long time. It comes in liquid and pill form. It is very potent – similar in potency and toxicity to heroin.

116As for U-47700, Det. Selwood described this as a synthetic opioid which is very rare. He has only encountered this drug three times in his career, including this case. He stated that it is 7.5 times more potent than morphine. He did not have any street pricing or valuation for this substance. He had never seized this substance himself.

117Det. Selwood described cocaine as a white or off-white powdered substance – a central nervous system stimulant – that increases the heart rate and energy levels. Users have described feeling upbeat and confident, or even feeling superhuman strength or the ability to do anything. It can also cause anxiety and unrest. It is typically inhaled through the nose with a straw or rolled up currency. He had only one time experienced someone who had injected cocaine, but he agreed it can be injected. In those circumstances, the user would take the powder, sometimes mix it with something, and then heat to liquify. As for crack cocaine, this is cocaine with added baking soda, distilled water, and a heating element. It becomes rock like and is then smoked through a pipe. It has a different effect, hitting the user much more quickly and the effects last for shorter periods of time.

118A light user of cocaine consuming powder would typically divide it into lines and inhale it. They would typically buy enough to last an evening as it is a party drug – between .5 to 1.7 grams being the most common amount. This would be the amount for an evening or a weekend depending on tolerance and potency. Det. Selwood stated that, in talking to users, they can create 10 lines out of a gram, depending on purity, tolerance, and how often they use, however, it could be more or less.

119As for the quantities in which cocaine is sold, it varies from 1/10 of a gram, ½ gram, gram, 1.7 grams (half ball), or an ounce (ball). It is also sold as a 9 pack - 9 ounces.

120The pricing for cocaine depends on its purity. Cocaine is often cut with a numbing agent which affects its purity. Pricing is also impacted by location and supply and demand. He explained that cocaine is far more common in the GTA than a lot of drugs. It is what is seized the most. The average pricing for 1.7 grams (half ball) of cocaine is $120 to $140, whereas 1.5 grams would be slightly less but in the same range. One gram would be in the $80 to $140 range. He agreed that the pricing is not precise, and it depends on where you are geographically in the region. These are prices for York / GTA.

121Det. Selwood had seen fentanyl cut with cocaine but not often. He described this as speed balling, and it is very dangerous, as it is like pulling the heart in two different directions. On the other hand, Det. Selwood had never seen fentanyl used as a cutting agent. Det. Selwood explained that speed balling was more common with heroin and cocaine, but when fentanyl came along, it was less prevalent.

122As for hot spotting, Det. Selwood described this as when fentanyl, or another opioid is mixed with another substance, but the mixture is not homogenous or consistent. Some parts may be more potent than others.

123Det. Selwood agreed that cutting and mixing is typically not occurring at the low level of trafficking.

124Det. Selwood agreed that fentanyl is nearly double the price of cocaine.

125Det. Selwood also had experience with mushrooms or psilocybin. He agreed that those can also be grounded and sold in capsules. He had never seen psilocybin mixed with other drugs but agreed it could be possible.

126Det. Selwood described the hierarchy of drug trafficking. At the bottom, there is the user / dealer, who will sell to supply their own habit. They tend to be less organized with no structure. They possess smaller amounts of drugs. In the middle, there is a mid level trafficker, who is more organized, not suffering from as much addiction, sell for profit, and have people working for them. He agreed that mid level traffickers would usually have packaging and scales. A high level trafficker is usually not a user. There are several layers of people working for them and bringing them profit. The high level trafficker brings the drugs in, then cuts or steps on them to enhance profits. A “runner” is somebody that would take direction from the dealer, go out to facilitate the deal between user and dealer, and bring profit back to the dealer. The runner is typically “pieced off” or given a percentage of the deal. Runners would do transactions constantly over the course of a day.

127As for how drug transactions are typically arranged, Det. Selwood explained that it is commonly the use of a cell phone, through text messages or different messaging applications. There are trends. He explained that drug traffickers want to stay concealed, so they use applications or texts depending on their experience and comfort levels, but it changes over time. Det. Selwood agreed that some applications do not save messages, such as snapchat, or are encrypted.

128Det. Selwood also described some commonly used terminology:

1. Terms for fentanyl – down, special K, fenny, killer, dog food, food. Det. Selwood also stated that there are different colours of fentanyl. To mask the white fentanyl, food colouring is used. Different colours are used to demonstrate potency. Sometimes fentanyl will be referred to by the colour, such as pink, red, grey death.

2. Terms for cocaine – snow, soft, blow, powder, party, C, coke, yayo.

3. Reupping – purchasing more substance from a supplier when the quantity is low or out.

4. Quantities – G is a gram; ball is 3.5 grams; half ball is 1.7 grams; O is ounce; zip could be an ounce. Numbers are also used, as in the actual amount in grams – typically for powder form drugs.

5. Link – can you hook me up, connect, can you meet

6. Ski – using cocaine, referring to doing lines.

129Det. Selwood agreed that a user could have more than one dealer, but that it depends on a number of factors, such as whether they are happy with the drug purchasing, geography, the type of drug, and if the drug was available or not. Det. Selwood agreed that, if a user’s dealer did not have a drug they were looking for, they might go elsewhere. He stated that this depends on the drug. Fentanyl users may turn to another dealer more often as they do not want to wait.

Triston Dennis – Evidence Regarding Refund and Return of Drugs

130Triston Dennis was 39 years old at the time of his testimony. He acknowledged having a criminal record, specifically possession of a firearm, disguise with intent, forcible confinement, possession of property obtained by crime, and a few others, but suggested it was all part of one incident in 2011 related to an alleged robbery. He received 7.5 years imprisonment. He was released in 2016, but due to a parole violation, he was re-incarcerated and was again released in 2018. He stated that he had no other convictions – “not that I know of” – since 2018 and had no other issues with the law. When asked about this one incident in cross-examination, Mr. Dennis stated that the only other court matter that he had was in “Kitchener and family court and it all was tied together and there was a conditional situation.” He stated that the judge gave him a unique situation where the sentence was conditional because he had his child full time. Mr. Dennis stated that he did not know “why it shows”. It was suggested to him that he pleaded guilty in 2019 to possession of property obtained by crime, to which he stated, “which I mentioned earlier…and that is part of the family court with the discharge…so why it shows, I do not know.” He agreed that this was not part of the robbery incident from 2011, but rather it came from family court. When it was suggested to him that he was originally charged with fraud, he said he was not charged with fraud, and the judge threw that out because there was no fraud committed. He then agreed that he was charged with fraud.

131He did not agree that his parole violation was that he was not reporting financials, but rather it was this charge that the judge combined with family court and gave him a conditional discharge. He agreed that, when he was on parole, he opened some bank accounts and started a business. It was suggested to him that police found that he had defrauded people of $293,000, to which he disagreed. He said that he was a victim in that case. When asked why he pleaded guilty, he said that he had to get it over with so he could deal with family court. He agreed that he was charged with a fraud, but was not guilty of a fraud, and he pleaded guilty to possession of property obtained by crime because the money was in his possession, but he did not commit crime. The facts that he pleaded guilty to were that he had possession of money – that money went into his account that he had in his hand in the photo. He stated that he did not admit that he knew it was obtained by crime. He did not agree that he lied to the court when he entered that plea. He testified that he did not admit that he knew it was obtained by crime, rather it was clear a crime was committed by this other group, he ended up in it, but he did not commit a crime himself. Ultimately, he received a nine-month conditional sentence.

132Mr. Dennis testified that he met Mr. Silvera during his initial incarceration in 2011. They developed a friendship in custody and had remained friends since, spending time socially such as attending Mr. Silvera’s son’s basketball games, birthday parties, and barbecues. This was the case in 2019. They would see each other on special occasions and, if they were going through something, they would talk. They did not speak on a daily basis. In 2019, they would use their cell phones to communicate, specifically Snapchat, and that those messages erase. As for any reason he would communicate with Mr. Silvera through Snapchat, he stated that this was the way he was communicating with most people and that it was the new thing.

133On June 8, 2019, he explained that he was heading to Mr. Silvera’s house for a gathering. He did not recall the street but that it was a new build in Aurora – a two-word street. He stated that this would have been in later afternoon or early evening – between 4 and 6 pm. He believed the gathering was for his brother’s birthday party and it was normal for him to attend these types of occasions.

134On the way to Mr. Silvera’s house, Mr. Silvera called Mr. Dennis through Snapchat and asked if he had any money on him. Mr. Dennis said he did. Mr. Silvera asked if he could grab some beer. Mr. Dennis did not ask any questions about why. He looked on his phone and there was a Beer Store not far from where he was, so he got off the highway and went to that Beer Store. He did not remember the specific location but thought it was Bayview in Aurora, just coming off the 404. In cross-examination, Mr. Dennis agreed that he had not gone back to the Beer Store to try to obtain receipts or surveillance to back up his story. Mr. Dennis stated that he bought the beer he was asked to buy but did not recall how much beer he bought. He paid with cash. Mr. Dennis understood that the beer was going to Mr. Silvera’s house.

135When he was leaving the Beer Store, he called Mr. Silvera and said he got the beer. Mr. Silvera asked him to do him a favour, specifically to drop the beer at a specific address, along with the change from the beer. Mr. Dennis testified that he had bought the beer with a $100 bill because he always has a few $100 bills in his wallet. Mr. Silvera told him that someone would meet him at the side door. Mr. Dennis was not exactly sure how much change was left from the $100. Mr. Dennis did not remember the specific address he was asked to attend but said it was not far from the Beer Store which was why he agreed. Mr. Dennis did not ask any questions about the purpose – Mr. Silvera just asked him to do a favour and he thought nothing of it. Mr. Silvera just said for him to bring the change and the beer, give it to the person and they would give Mr. Dennis something and he should bring it. As for why he agreed to provide his own money to someone he had never met, Mr. Dennis stated that Mr. Silvera asked to borrow it, so it is his money, he thought he might be getting weed, he was not going to interrogate him about the money he borrowed. He understood that Mr. Silvera would give it back to him.

136The driving time between the Beer Store and the address was less than 10-15 minutes. He had never been to this address before. In preparing to testify, he had not driven in the area to try to locate the address again. He thought the address might be off Wellington. He said it was one time six years ago, and he would not remember the drive to that house. At the location, he let Mr. Silvera know he was outside through Snapchat. He did not recall what the house or side door looked like. In cross-examination, when pushed further, he said it was not a new build as in there was no construction in the area. He did not know whether it was a large or small lot. He said it definitely was not a mansion. He did not think the house was in the middle of nowhere.

137Mr. Silvera told him to go to the side door. According to Mr. Dennis, he did not knock on the door or ring the bell as he did not have to. When he went to the door, the person came out. One man came to the door, who he described as a bigger Asian male. He did not know the colour of his hair or the clothes he was wearing. He had never seen this person before and did not know him or his name. They did not introduce themselves. He did not see anyone else around at the time. The man appeared normal, and nothing caused him any concern. He gave him the beer and the money. Mr. Dennis said that he did not give this man any drugs. The man gave him a bag. He did not know what was in the bag. He said it was like a small plastic convenience store bag that he could not see inside – a bag that would hold a couple of small bottles of pop. Mr. Dennis said the bag was closed – like “scrumpled up plastic”. He did not ask what was in the bag. He assumed it might be some weed. The bag was not very heavy. Mr. Dennis stated that he would not involve himself in anything else at that time and was not involved in drug trafficking. He did not want to get in trouble again. The man said thanks, Mr. Dennis said no problem. There was no other conversation. He threw the bag on the passenger seat and left.

138In cross-examination, Mr. Dennis initially did not agree that it would be illegal for Mr. Silvera to send him to get weed. He said he had been a medical marijuana card holder since 2010. He said he had been buying weed on the street since he was a child. When it was suggested that this was illegal, he testified, “It might be illegal to you, but I mean in the 60s they sold weed on the corner like that’s exactly how most people are introduced to marijuana. There was no legal marijuana dispensaries in Canada until recently…so everybody has done that. I guess you can call it illegal by law but there was no other way to obtain marijuana which is a substance that people use medically for years.” Mr. Dennis testified that weed was not illegal to him.

139Mr. Dennis then went to Mr. Silvera’s house, which took about 10-15 minutes – it was relatively the same area. He walked in, gave the bag to Mr. Silvera, and then went to talk to everyone else to enjoy the gathering. He never looked inside the bag and testified that what was in the bag was not really of his concern.

140For doing this favour, Mr. Dennis testified that he got the money back that was owed to him but no other benefit.

141When Mr. Dennis learned that Mr. Silvera was arrested for the matter before the court, he did not come forward to speak to police about what happened on that day. He stated that he did not think much of it and did not want to be involved. He said it was just a favour and he did not think anything had happened that he should tell the police about. As for why he came forward now, he said that he realized that it was more than what he thought it was originally. He testified that he thought he was doing a favour but has now come to find out that he was allegedly involved, and he wanted to make sure it was clear that he was not involved. According to Mr. Dennis, no one had pressured him to testify or tell him what to say. He had obtained independent legal advice before attending to testify.

Analysis

Offences

142The obligation to prove guilt rests with the Crown. To prove guilt of an offence, Crown counsel must prove each and every essential element of the offence beyond a reasonable doubt. Mr. Silvera is not required to prove anything.

143In order to prove the offence of trafficking, the Crown must prove the following essential elements of that offence beyond a reasonable doubt:

1. That Stanley Silvera trafficked in a substance;

2. That the substance was cocaine, fentanyl and U-47700;

3. That Stanley Silvera knew that the substance was cocaine, fentanyl and U-47700; and

4. That Stanley Silvera intentionally trafficked in cocaine, fentanyl and U-47700.

144It is conceded that Stanley Silvera trafficked drugs to Mr. Quevedo on June 8, 2019. The Defence concedes that, based on Mr. Rath’s evidence, together with the text messages, there is sufficient evidence to conclude that there was a transaction made on June 8, 2019. The focus for this court on this count is whether or not those drugs are those specified in the Indictment. The Crown made it clear that, in this case, they are alleging that this particular substance was trafficked and caused the death, therefore, in this case, the Crown agrees that the trafficking rises and falls on proving that Mr. Silvera trafficked this specific substance. If this court finds that Mr. Silvera trafficked in some other substance, or has a reasonable doubt about what the substance was, the Crown concedes that Mr. Silvera is not guilty of either count.

145In order to prove the offence of unlawful act manslaughter, the Crown must prove the following essential elements of that offence beyond a reasonable doubt:

1. That Stanley Silvera caused Christian Quevedo’s death; and

2. That Stanley Silvera caused Christian Quevedo’s death by an unlawful act.

146In R. v. Javanmardi, 2019 SCC 54, at para 30, the court confirmed that the actus reus or external circumstances of unlawful act manslaughter under s. 222(5)(a) is that the accused committed an unlawful act and that unlawful act caused another person’s death. The Crown need not prove that the unlawful act was objectively dangerous.

147In R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, p. 42-3, the Court confirmed that the mens rea for unlawful act manslaughter must include the mens rea of the underlying offence, and objective foreseeability of the risk of bodily harm that is neither trivial nor transitory, in the context of the dangerous act. See also: Javanmardi, para 31. Foreseeability of death is not required.

148In selling street drugs, there is an objective foreseeability of the risk of bodily harm that is neither trivial nor transitory as set out in R. v. Johnson, 2017 ONSC 1130 at para 31. Even recreational levels of cocaine can cause death from cardiac arrhythmia. The Supreme Court of Canada recognized the danger of trafficking in hard drugs in R. v. Parranto, 2021 SCC 46, para 87-88. Seemingly, the objective foreseeability of the risk of bodily harm which is neither trivial nor transitory is increased when the substance involves fentanyl, known to be more potent and dangerous.

149To prove that Stanley Silvera’s conduct caused Christian Quevedo’s death, Crown counsel must prove beyond a reasonable doubt that Stanley Silvera’s conduct contributed significantly to Christian Quevedo’s death. A person’s conduct may contribute significantly to another person’s death even though that conduct is not the sole or main cause of the other person’s death. If this court is satisfied beyond a reasonable doubt that Mr. Silvera’s conduct contributed significantly to the death, it does not matter that proper or timely medical treatment might have saved Mr. Quevedo’s life, or that Mr. Silvera’s conduct only accelerated the death from some existing disease or condition. On the other hand, if something else happened or somebody else did something later that resulted in Mr. Silvera’s conduct no longer being a significant contributing cause of Mr. Quevedo’s death, then Crown counsel has failed to prove beyond a reasonable doubt that Mr. Silvera’s conduct contributed significantly to the death. To answer this question, the court must consider all of the evidence and applicable legal principles.

150In R. v. Nette, 2001 SCC 78, the majority decision, written by Arbour J., provided the following guidance on the issue of causation and the notion of “contributed significantly”:

44In determining whether a person can be held responsible for causing a particular result, in this case death, it must be determined whether the person caused that result both in fact and in law. Factual causation, as the term implies, is concerned with an inquiry about how the victim came to his or her death, in a medical, mechanical, or physical sense, and with the contribution of the accused to that result. Where factual causation is established, the remaining issue is legal causation.

45Legal causation, which is also referred to as imputable causation, is concerned with the question of whether the accused person should be held responsible in law for the death that occurred. It is informed by legal considerations such as the wording of the section creating the offence and principles of interpretation. These legal considerations, in turn, reflect fundamental principles of criminal justice such as the principle that the morally innocent should not be punished: see Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, at p. 513; R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636, at p. 652-53; R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, at p. 336; R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, at p. 17; Cribbin, supra, at p. 568. In determining whether legal causation is established, the inquiry is directed at the question of whether the accused person should be held criminally responsible for the consequences that occurred…

77The difficulty in establishing a single, conclusive medical cause of death does not lead to the legal conclusion that there were multiple operative causes of death. In a homicide trial, the question is not what caused the death or who caused the death of the victim but rather did the accused cause the victim’s death. The fact that other persons or factors may have contributed to the result may or may not be legally significant in the trial of the one accused charged with the offence. It will be significant, and exculpatory, if independent factors, occurring before or after the acts or omissions of the accused, legally sever the link that ties him to the prohibited result.

79… The thin-skull rule, which is a long-standing principle of tort law, provides that a wrongdoer must take his victim as he finds him: Dulieu v. White, [1901] 2 K.B. 669; Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458. Thus, the fact that a victim’s head injuries are aggravated beyond what would normally be expected because of the victim’s unusually thin skull does not relieve a tortfeasor of liability for the full extent of the harm that resulted from his wrongdoing. That principle applies equally in the criminal context and is reflected, in part, in ss. 222(5)(d) and 226 of the Criminal Code. As expressed by McLachlin J., as she then was, in Creighton, supra, at p. 52:

The thin-skull rule is a good and useful principle. It requires aggressors, once embarked on their dangerous course of conduct which may foreseeably injure others, to take responsibility for all the consequences that ensue, even to death.

The potential harshness of the application of the thin-skull rule in the criminal context is mitigated by the requirement that the accused have the requisite mens rea for the offence charged, which consists of “objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act”: Creighton, supra, at p. 45.

151In R. v. Kippax, 2011 ONCA 766, Mr. Kippax contended that the trial judge’s finding on causation was flawed because she failed to consider relevant evidence, engaged in speculation, and made unwarranted findings of fact about tandem driving and foreseeability of harm. In dealing with the issue of causation, Watt J. for the court stated in part as follows:

23Factual causation involves a determination of whether A caused B. The answer to the question of whether A caused B is resolved in a criminal case by the evidence of witnesses, those who testify about facts and others who offer relevant opinions: R. v. Smithers, 1977 CanLII 7 (SCC), [1978] 1 S.C.R. 506, at 518. The factual determination of whether A caused B has nothing to do with intention, foresight or risk: Smithers, at p. 518.

24To prove factual causation, the Crown does not have to prove that an accused’s conduct was either the direct or predominant contributing cause of the prohibited consequence, whether death or bodily harm. It is no defence for an accused to say that the conduct of another was a greater or more substantial cause of the death or injuries. The Crown need only prove that an accused’s conduct was a significant contributing cause of the death or injuries or, said another way, that the accused’s conduct was “at least a contributing cause…outside the de minimis range”: Smithers, at p. 519; Nette, at paras. 70-71; and R. v. Hughes, 2011 BCCA 220, 305 B.C.A.C. 112, at paras. 56 and 64.

26Legal causation, on the other hand, has to do with whether an accused should be held responsible in law for a prohibited consequence of his or her conduct, for example, death or bodily harm: Nette, at para. 45. In legal causation, the inquiry is directed at the question of whether an accused should be held criminally responsible for the consequences that occurred: Nette, at para. 45; R. v. Shilon (2006), 2006 CanLII 41280 (ON CA), 240 C.C.C. (3d) 401 (Ont. C.A.), at para. 32. In the analysis of legal causation in negligence-based offences, like dangerous driving, reasonable foreseeability of harm is a relevant consideration: Shilon, at para. 33.

27Conduct that is inherently dangerous and carries with it a reasonably foreseeable risk of immediate and substantial harm satisfies the standard required for legal causation: Shilon, at para. 38. Where the conduct of another is a reasonably foreseeable consequence of the conduct of an accused, the accused may be liable as a principal for the conduct of that other person: Shilon, at para. 54. A person may be liable as a principal if she or he actually does or contributes to the actus reus with the required mens rea: Hughes, at para. 77.

28It is well-established that independent, voluntary human intervention in events started by an accused may break the chain of causation: Shilon, at para. 43. A new event may result in an accused’s conduct not being a significant contributing cause of a prohibited consequence. But legal responsibility for an event will remain and the chain of causation will not be broken where an accused intentionally produced the outcome, recklessly brought it about, or if the ordinarily circumspect person would have seen it as a likely consequence of his or her own conduct: R. v. Maybin, 2010 BCCA 527, 263 C.C.C. (3d) 485, at para. 35.

See also: R. v. Romano, 2017 ONCA 837 at paras. 26-29

152Factual causation gives rise to the question: “but for” the accused’s actions, would the prohibited consequence have occurred? In R. v. Maybin, 2012 SCC 24, the Supreme Court of Canada considered causation in the context of a bar fight. The Court of Appeal was unanimous that the accused’s assaults were factually a contributing cause of death — “but for” their actions, the victim would not have died. Furthermore, the majority of the Court of Appeal concluded that the risk of harm caused by the intervening actor could have been reasonably foreseeable to the accused. The dissenting judge did not agree that the accused could have reasonably foreseen the conduct of the intervening actor, and also concluded that the intentional act of a third party (bouncer) acting independently severed legal causation. The appeal was allowed, the acquittals were set aside, and a new trial was ordered. At the Supreme Court of Canada, the appeal was dismissed. Karakatsanis J., writing for the court, stated as follows:

1The causal link between an accused’s actions and the victim’s death is not always obvious in homicide cases. In cases involving multiple causes of death or intervening causes between an accused’s action and the victim’s death, determining causation is more challenging. An accused’s unlawful actions need not be the only cause of death, or even the direct cause of death; the court must determine if the accused’s actions are a significant contributing cause of death.

14In Smithers, this Court pronounced the test for causation in manslaughter as “a contributing cause of death, outside the de minimis range” (p. 519). In that case, the accused punched the victim in the head and delivered a hard, fast kick to the victim’s stomach. The medical cause of the victim’s death was the aspiration of foreign materials present from vomiting; doctors testified that such aspiration rarely happens when the epiglottis functions properly. Dickson J. stated that it was “immaterial that the death was in part caused by a malfunctioning epiglottis to which malfunction the [accused] may, or may not, have contributed” (p. 519). An unlawful act may remain a legal cause of a person’s death even if the unlawful act, by itself, would not have caused that person’s death, provided it contributed beyond de minimis to that death (p. 522). The Court thus recognized that there may be a number of contributing causes of death.

15In Nette, this Court affirmed the validity of the de minimis causation standard expressed in Smithers for culpable homicide. Writing for the majority, Arbour J. noted that causation in homicide cases involves two aspects: factual and legal causation…

17Further, this Court emphasized that causation issues are case-specific and fact-driven. The choice of terminology to put to a jury is discretionary in the context of the circumstances of the case (Nette, at para. 72). Implicit in Nette then, is the recognition that different approaches may be helpful in assessing legal causation, depending upon the specific factual context.

28… Even in cases where it is alleged that an intervening act has interrupted the chain of legal causation, the causation test articulated in Smithers and confirmed in Nette remains the same: Were the dangerous, unlawful acts of the accused a significant contributing cause of the victim’s death?

29Depending on the circumstances, assessments of foreseeability or independence may be more or less helpful in determining whether an accused’s unlawful acts were still a significant contributing cause at the time of death. Any assessment of legal causation should maintain focus on whether the accused should be held legally responsible for the consequences of his actions, or whether holding the accused responsible for the death would amount to punishing a moral innocent.

153In R. v. Triolo, 2023 ONCA 221, Doherty J.A., writing for the majority, summarized the legal principles in respect of causation as it applied to unlawful act manslaughter as follows:

186The trial judge must, of course, get the law right in his jury instructions. In respect of causation as applied to unlawful act manslaughter, R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30, sets out the relevant principles:

• Legal or imputable causation is determined by asking whether the Crown has proved beyond a reasonable doubt that the actions of an accused were a significant contributing cause of the victim’s death: Maybin, at para. 5;

• The causation inquiry is a normative one. The trier of fact looks for a connection between the actions of the accused and the victim’s death sufficient to morally justify the imposition of legal liability for the homicide: Maybin, at paras. 16, 60;

• The causation inquiry is of necessity, case-specific, and fact-driven. The terminology to be used in describing the causation requirement to a jury is discretionary and will have regard to the circumstances of the case and the particular nature of the causation issue: Maybin, at para. 17;

• The law recognizes that the actions of another person can break the chain of causation between the actions of an accused and the victim’s death: Maybin, at para. 23;

• There is no single test or measure for determining whether a particular act has broken the chain of causation. The question remains whether the unlawful acts of the accused were a significant contributing cause in the victim’s death: Maybin, at paras. 23-29;

• A determination of whether the alleged intervening act was reasonably foreseeable can assist in determining whether the causation chain is broken by the intervening act. Reasonable foreseeability is not, however, a test for legal causation, but only a tool to be used, if appropriate in assessing whether, despite the alleged intervening act, legal responsibility for the death should still be imputed to the accused: Maybin, at paras. 30-44; and

• An independent act committed by another may break the chain of causation. An act is independent for this purpose if it is not directly linked to the actions of the accused, and by its nature overwhelms the actions of the accused so that the accused can properly be said to be morally innocent in the death. The independent act inquiry is also not a test for causation. It is a lens through which the trier of fact may, when the trier considers it appropriate, conduct the significant contributing cause inquiry: Maybin, at paras. 45-56.

154In R. v. Smyth, 2007 CanLII 17201 (ON SC), Trafford J. stated, relying on Smithers, “Causation is a question of fact for the trier of fact, not the experts, to determine after considering the evidence as a whole, including the circumstantial and direct evidence bearing on the issue, as well as any expert evidence.”

155The Crown submitted that Stanley Silvera factually contributed to Christian Quevedo’s death by the unlawful act of selling him the drugs that are known to have caused his death, the mixture of fentanyl, U-47700, and cocaine. As stated earlier, it is conceded that Stanley Silvera trafficked drugs to Mr. Quevedo on June 8, 2019. It is conceded that acute toxicity of fentanyl, U-47700, and cocaine was a significant contributing cause of death. Everyone agrees that the only question on the manslaughter charge is whether the drugs that were trafficked by “Anthony”, which the Defence concedes is Mr. Silvera, are the same drugs that caused the death of Mr. Quevedo – the mixture of fentanyl, U-47700, and cocaine.

Circumstantial Evidence

156The Crown concedes that they are relying on circumstantial evidence.

157With respect to circumstantial evidence, the analysis as established by the Supreme Court of Canada in R v. Villaroman, 2016 SCC 33, and the Court of Appeal for Ontario in R v. Darnley, 2020 ONCA 179 and R. v. Ali, 2021 ONCA 362, must be followed when considering whether the evidence establishes proof beyond a reasonable doubt.

158In Villaroman, the Supreme Court of Canada described the relationship between circumstantial evidence and proof beyond a reasonable doubt. The court stated in part as follows:

28The reasonable doubt instruction describes a state of mind - the degree of persuasion that entitles and requires a juror to find an accused guilty: Berger, at p. 60. Reasonable doubt is not an inference or a finding of fact that needs support in the evidence presented at trial: see, e.g. Schuldt v. The Queen, 1985 CanLII 20 (SCC), [1985] 2 S.C.R. 592, at pp. 600-610. A reasonable doubt is a doubt based on "reason and common sense"; it is not "imaginary or frivolous"; it "does not involve proof to an absolute certainty"; and it is "logically connected to the evidence or absence of evidence": Lifchus, at para. 36. The reasonable doubt instructions are all directed to describing for the jurors how sure they must be of guilt in order to convict.

29An instruction about circumstantial evidence, in contrast, alerts the jury to the dangers of the path of reasoning involved in drawing inferences from circumstantial evidence: Berger, at p. 60. This is the danger to which Baron Alderson directed his comments. And the danger he identified so long ago - the risk that the jury will "fill in the blanks" or "jump to conclusions" - has more recently been confirmed by social science research: see Berger, at pp. 52-53. This Court on occasion has noted this cautionary purpose of a circumstantial evidence instruction: see, e.g., Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16, per Rand J., at p. 22; John, per Laskin J., dissenting but not on this point, at p. 813.

30It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences. It may be helpful to illustrate the concern about jumping to conclusions with an example. If we look out the window and see that the road is wet, we may jump to the conclusion that it has been raining. But we may then notice that the sidewalks are dry or that there is a loud noise coming from the distance that could be street-cleaning equipment, and re-evaluate our premature conclusion. The observation that the road is wet, on its own, does not exclude other reasonable explanations than that it has been raining. The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

37When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, 1938 CanLII 14 (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff’d 1938 CanLII 7 (SCC), [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw, 1971 CanLII 13 (SCC), [1972] S.C.R. 2, at p. 8. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

38Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

41While this language is not appropriate for a jury instruction, I find the idea expressed in this passage — that to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative — a helpful way of describing the line between plausible theories and speculation.

50When dealing with the defence position, the judge correctly stated the law, in my opinion. The judge properly noted that "the accused cannot ask this Court to rely on supposition or conjecture, that flows from a purely hypothetical narrative to conclude that the Crown has not proven he is guilty of the offences with which the Crown has charged him": para. 47. The judge's citation of McIver was intended to make the same point, i.e. that a reasonable doubt cannot arise from speculation or conjecture. This is perfectly correct. As the Court said in Lifchus, "a reasonable doubt must not be imaginary or frivolous"; need not be proof to an absolute certainty; and must be based on "reason and common sense": paras. 31 and 36. The burden on the Crown does not extend to "negativing every conjecture": R. v. Paul, 1975 CanLII 185 (SCC), [1977] 1 S.C.R. 181, at p. 191.

See also: R. v. R.M., 2020 ONCA 231, paras. 13, 16

159In Darnley, the Court of Appeal for Ontario further clarified the relationship between circumstantial evidence, reasonable inferences, and reasonable doubt as follows:

34Moreover, an inference need not arise from “proven facts”, which is a “standard that is never applicable to an accused”: R. v. Roberts (2000), 2000 CanLII 5129 (ON CA), 143 C.C.C. (3d) 330, at para. 17 (Ont. C.A.). This is because a reference to “proven facts” suggests an obligation to establish those facts to a standard of proof, yet a reasonable doubt can arise from evidence that, while not proven to be true to any standard of proof, has not been rejected.

35It is also incorrect to link a reasonable doubt to a “conclusion” drawn from the facts. An acquittal need not be based on a conclusion about innocence but can rest on an inability to conclude guilt.

36It is also an error to suggest that an exculpatory inference must be “a much stronger conclusion” than a speculation or guess. That language imports the need for a strong inference, when an exculpatory inference relating to a required element of the offence need merely raise a reasonable doubt: Villaroman, at para. 20

160The Ontario Court of Appeal, in the case of R. v. J.C., 2021 ONCA 131 at para. 58, stated “that judges must avoid speculative reasoning that invokes ‘common sense’ assumptions that are not grounded in the evidence or appropriately supported by judicial notice…”

161In R. v. Ali, at paras 97-8, the court stated as follows:

97An inference of guilt drawn from circumstantial evidence must be rooted in the evidence and must be the only reasonable inference available on the totality of the evidence. However, when the jury is considering whether the Crown has met its burden to show that guilt is the only reasonable inference, the jury is not engaged in fact-finding and is not limited to considering alternative explanations founded on the evidence. Instead, the jury is testing the force of the inference urged by the Crown against the reasonable doubt standard. In doing so, the jury can consider other reasonable alternative explanations for the conduct. Those alternative explanations may or may not lead the jury to conclude the Crown has failed to prove that guilt is the only reasonable inference available on the evidence: R. v. Villaroman, 2016 SCC 33, at paras. 28, 35-42.

98In determining whether the Crown has met that burden in a circumstantial evidence case, the jury may apply its logic and common sense to the totality of the evidentiary picture, including gaps in that picture, and consider whether other reasonable possibilities not only exist, but preclude a finding that an inference of guilt is the only reasonable inference available. As explained in Villaroman, at para. 36:

… a reasonable doubt or theory alternative to guilt, is not rendered ‘speculative’ by the mere fact that it arises from a lack of evidence … a certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

162The “only reasonable inference” criterion does not mean that guilt had to be the only possible or conceivable inference. See: R. v. Vernelus, 2022 SCC 53, para 5.

163In R. v. Hudson, 2021 ONCA 772, para 68, the court held that inference-drawing in cases of circumstantial evidence may involve prospectant reasoning, concomitant reasoning, and/or retrospectant reasoning.

164Circumstantial evidence must be viewed as a whole and not each piece individually. See R. v. Beaver, 2025 ONCA 88, para 34.

165This Court has kept these principles firmly in mind in assessing the evidence and in reaching its conclusions.

Reasonable Inferences versus Speculation

166Unquestionably, the line between reasonable inference drawing and speculation is a difficult one to draw in many circumstances. In R. v. Munoz (2006), 2006 CanLII 3269 (ON SC), 205 C.C.C. (3d) 70 (Ont. S.C.), Justice Ducharme provided some guidance as to the difference between the two:

24A good starting point for any discussion of inference drawing is the definition offered by Justice Watt:

An inference is a deduction of fact which may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. It is a conclusion that may, not must be drawn in the circumstances.

Equally important is Justice Watt's admonition that, "The boundary which separates permissible inference from impermissible speculation in relation to circumstantial evidence is often a very difficult one to locate."

25The process of inference drawing was described by Doherty J.A. in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) at p. 209 as follows:

A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation. As Chipman J.A. put it in R. v. White (1994), 1994 NSCA 77, 89 C.C.C. (3d) 336 at p.351, 28 C.R. (4th) 160, 3 M.V.R. (3d) 283 (N.S.C.A.):

These cases establish that there is a distinction between conjecture and speculation on the one hand and rational conclusions from the whole of the evidence on the other.

[Emphasis added]

The highlighted sentence suggests that there are two ways in which inference drawing can become impermissible speculation and I will discuss each in turn.

26The first step in inference drawing is that the primary facts, i.e. the facts that are said to provide the basis for the inference, must be established by the evidence. If the primary facts are not established, then any inferences purportedly drawn from them will be the product of impermissible speculation….

28The second way in which inference drawing can become impermissible speculation occurs where the proposed inference cannot be reasonably and logically drawn from the established primary facts. This possibility stems precisely from the fact that an inductive conclusion is not necessarily valid…..Consequently, one can overreach and draw an inference that should not properly be drawn from the primary facts.

29The courts have repeatedly cautioned against confusing a reasonable inference with mere speculation. Where an inferential gap exists, it can only be properly overcome by evidence. This point was powerfully made by Doherty J.A. in R. v. Huynh (2005), 2005 CanLII 34563 (ON CA), 200 C.C.C. (3d) 305 (Ont. C.A.)…

30It is difficult, if not impossible, to define with any precision a bright line distinction between the drawing of reasonable inferences and mere speculation….

31However, it must be emphasized that this requirement of "logical probability" or "reasonable probability" does not mean that the only "reasonable" inferences that can be drawn are the most obvious or the most easily drawn.

167In R. v. Chanmany, 2016 ONCA 576, para 45, the court stated:

45First, the distinction between inference and speculation. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established at trial. There cannot be an inference without objective facts from which to infer the fact or facts a party seeks to establish. On the other hand, speculation involves theorizing in the absence of evidentiary support. Speculation occurs when a conclusion is reached in the absence of positive, proven, objective facts from which an inference may be drawn.

168An inference must be reasonable and logical, but the law does not require that all inferences flow easily from the facts. A difficult inference may still be reasonable and logical. In R. v. Katwaru, 2001 CanLII 24112 (ON CA), [2001] O.J. No. 209 (C.A.), Moldaver J.A. stated:

40The appellant submits, correctly in my view, that the trial judge erred by inserting the word "easily" into the equation. In order to infer a fact from established facts, all that is required is that the inference be reasonable and logical. The fact that an inference may flow less than easily does not mean that it cannot be drawn. To hold otherwise would lead to the untenable conclusion that a difficult inference could never be reasonable and logical.

Manslaughter Charged in Cases of Overdose Deaths

169In R. v. W.(C.), 2006 CanLII 11225 (ON CA), [2006] O.J. No. 1392 (C.A.), the Appellant sought to set aside his convictions for manslaughter and sexual interference arising out of circumstances that resulted in the death of a thirteen-year-old girl who had attended a party at the Appellant’s home. The Court rejected the “intervening act” argument that the fact that the deceased was helping herself to the drugs in the absence of the Appellant cannot be trafficking. The Court found that the Appellant made drugs available in large quantities to his guests, including facilitating, encouraging, welcoming, promoting, and instructing on use. (paras 5-6).

170In R. v. Johnson, 2017 ONSC 1130, Code J. was considering a certiorari application in relation to numerous charges, including manslaughter and criminal negligence, in the context of an overdose death. The Court summarized many of the relevant principles, stating in part as follows:

8The 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 (2011), 2011 SCC 54, 276 C.C.C. (3d) 210 (S.C.C.) at paras. 18 and 20; R. v. Smithers (1977), 1977 CanLII 7 (SCC), 34 C.C.C. (2d) 427 (S.C.C.).

The Court made it clear (paras 17-24) that an intention to traffic in a specific drug is not required in order to prove the underlying offence of trafficking; rather, the accused’s honest belief that some other illegal drug was being trafficked, and not the drug alleged and proved to have been trafficked, is not a defence, referring to cases such as R. v. Burgess, 1969 CanLII 467 (ON CA), [1970] 3 C.C.C. 268 (Ont. C.A.), R. v. Blondin (1970), 1970 CanLII 1006 (BC CA), 2 C.C.C. (2d) 118 (B.C.C.A.) as affirmed at (1971), 1971 CanLII 1411 (SCC), 4 C.C.C. (2d) 566 (S.C.C.), R. v. Aiello (1978), 1978 CanLII 2374 (ON CA), 38 C.C.C. (2d) 485 (Ont. C.A.) The Court also noted, at para 31, that even if Mr. Johnson did not know the drug he provided contained heroin, there was evidence of the known risks associated with contamination of street drugs, and that cocaine on its own is a potentially dangerous drug that can cause death.

171In R. v. Ali, 2020 ONSC 1719, the accused was charged with possessing heroin and furanyl fentanyl for trafficking purposes and manslaughter in a death for having supplied drugs that killed the deceased. The court concluded that the circumstantial evidence was “not capable of pulling the necessary freight to support a conviction”. (para 29) Text messages linked the deceased and the middleman, Walker, and provided evidence that the deceased arranged to buy drugs from Walker. When questioned by police, Walker advised that the drugs had come from someone named “Sasha”, who was later determined to be the accused. Upon arrest of the accused, officers found quantities of a number of illicit drugs in his car, including marijuana, cocaine, and a mix of heroin and furanyl fentanyl. The Court held that the central issues for determination were whether the Crown had established that the drugs provided to the deceased by Walker came from the accused and, if so, whether those drugs caused his death. The Court was unable to place any reliance upon the direct evidence of Walker. As for the circumstantial evidence, the court was unable to conclude that the drugs came from the accused or that those drugs caused his death. While the court acknowledged that the drugs found in Mr. Ali’s possession appeared similar in composition to those found in the deceased’s bedroom, the court could not put aside the possibility of coincidence in the face of not knowing how common the mixture was in the area. While this would have been determinative on the charge of manslaughter, the court went on to state that, even if satisfied that the accused supplied the drugs that Walker sold to the deceased, he would still have a reasonable doubt about causation. The court had this doubt for several reasons, including the lack of credible evidence about the difference between the weight of the drugs at purchase and the weight of the seized drugs, the wide range of drugs in the deceased’s system at the autopsy, and the lack of caffeine and dimethylsulphone that were found in the fentanyl / heroin mixture seized from Mr. Ali. The court found that the deceased died from an overdose of furanyl fentanyl, however given that the deceased lived for hours after taking heroin, the court questioned whether he had another source of furanyl fentanyl. The court stated:

45Mr. Kelly was an opioid addict. Although there were no other packets of furanyl fentanyl or heroin found in his room, it is possible that he had drugs from sources other than Mr. Walker and possible that he ingested them on the night of his death.

46Again, while I think it very probable that the drugs provided to Mr. Kelly by Mr. Walker are the ones that killed him, I cannot be entirely sure. That means that I must acquit Mr. Ali of manslaughter.

172In R. v. Brazier, 2023 ONSC 3191, the Court was satisfied beyond a reasonable doubt that Mr. Brazier sold cocaine and fentanyl to Mr. Glover on the day in question and convicted Mr. Brazier of unlawful act manslaughter referring to the following facts:

1. Both fentanyl and cocaine (including metabolites of cocaine) were found in a femoral blood sample drawn from Mr. Glover post-mortem. (para 57)

2. Based on the half-life of fentanyl, and the fact that Mr. Glover had been at Waypoint until about 12 hours before his death, the court inferred that he ingested fentanyl within 12 hours of death. (para 58-9)

3. Mr. Glover’s cell phone records provided strong evidence as to his source of fentanyl and cocaine and the nature of the substances. (para 62)

4. The Court found that the communications established that Mr. Brazier sold Mr. Glover two points of fentanyl and roughly half a gram of cocaine at around 1:00 pm that day. He sold additional cocaine and fentanyl to Mr. Glover at 4:30 pm that day. (para 159)

5. Ms. McTamney’s evidence was that she gave $160 to Mr. Glover to buy drugs from Mr. Brazier and she observed Mr. Brazier provide Mr. Glover with a baggie with a white substance and another baggie with a purple substance. She saw Mr. Glover consume these drugs and have a physical reaction to these substances. She stayed with Mr. Glover for quite a while after she saw him take the drugs and she did not see him take any further drugs. When she left Mr. Glover, she described him as appearing “like the living dead” as the colour was out of his face and he had bluish lips. (para 86-91)

The Court was ultimately satisfied, beyond a reasonable doubt, that Mr. Brazier sold Mr. Glover the fentanyl and cocaine that caused his death.

173In R. v. Norn, 2024 ONSC 1836, Mr. Norn pleaded guilty to one count of trafficking in fentanyl. The issue before the court was whether the Crown had proven beyond a reasonable doubt that it was the fentanyl that Mr. Norn sold to Mr. Ginn that caused his death. There was also an issue as to whether or not a warning given by Mr. Norn to Mr. Ginn not to use too much fentanyl broke the chain of causation. A number of facts were not in dispute, including:

1. Mr. Norn sold Mr. Ginn $20 worth of fentanyl at 7:29 pm. It was conceded that trafficking of fentanyl is an unlawful act which is objectively dangerous.

2. Mr. Ginn’s girlfriend was with him from 6:59 pm to 9:44 pm, and when she left, he was alive but not conscious.

3. Given that there was no outgoing cell phone activity after that point, the court concluded that Mr. Ginn died not long after his girlfriend left.

4. Toxicology revealed 6.9 ng/mL of fentanyl and 17 ng/mL of etizolam.

5. Pathology evidence was that both the fentanyl and the etizolam were the cause of death.

174The Court stated in part as follows:

52The circumstantial evidence in this case is substantial. It begins with the indisputable fact that Mr. Norn sold Tyler fentanyl. It is also beyond doubt that a lethal dose of fentanyl combined with etizolam was the cause of Tyler's death. As previously discussed the only real issue is whether it was the fentanyl sold by Mr. Norn to Tyler that was the cause of Tyler's death. Framed differently, does the evidence establish a reasonable doubt that Tyler had access to other fentanyl other than what he purchased from Mr. Norn and thus leave open to this court to conclude that it was the "other" fentanyl that killed Tyler.

175In deciding this question, the court considered the following:

1. While the cell phone evidence demonstrated that Mr. Ginn was a regular user and even a dealer of illicit drugs, there was very little evidence that Mr. Ginn was a regular user of fentanyl.

2. The text messages suggest that Mr. Ginn was anxious to get fentanyl, which he would not likely have been if he had access to other fentanyl.

3. Mr. Ginn’s girlfriend did not know what was being searched for in the van on the video evidence, therefore it would seem Mr. Ginn never told her anything about looking for drugs or finding other drugs.

4. Mr. Ginn not only asked Mr. Norn for fentanyl, but also for the means to consume the drug – specifically a straw and tinfoil – both of which were found in Mr. Ginn’s bathroom, suggesting he was not a regular user.

5. According to Mr. Ginn’s girlfriend, his presentation after he used what he did in the washroom was not consistent with his usual presentation of using Xanax.

6. There was no evidence of any other controlled drugs in the home.

176Based on all of the circumstantial evidence, the Court was left with no reasonable doubt that the fentanyl supplied by Mr. Norn was the fentanyl that resulted in his death. The Court did not agree that the warning by Mr. Norn was an intervening act that broke the chain of causation. Mr. Norn was convicted of manslaughter.

Application of the Law to the Facts

177The Crown’s case is entirely circumstantial. This court must be satisfied that the only reasonable inference is that Mr. Silvera is guilty.

178There is certainly some evidence that Mr. Silvera sold drugs to Mr. Quevedo at least a month prior to June 8, 2019. For example, text messages between their phones would suggest drug transactions on a few days in May 2019 and early June 2019. For example, on June 6, 2019, Mr. Quevedo reaches out to Mr. Silvera to ask “how much u charge for a ball” to which he responds “260”. Later that night, they seem to be making arrangements to meet.

179On the day of Mr. Quevedo’s death, the following exchange takes place:

CQ (1:10:54 pm): Yo

SS (1:20:10 pm): Yo

CQ (1:20:23 pm): When r u around

SS (1:20:45 pm): At practice right now with my son

SS (1:21:37 pm): What you need

CQ (1:22:22 pm): 1.5

SS (1:23:42 pm): Yo do you like morphine?

CQ (1:25:01 pm): Never tried it.

SS (1:55:47 pm): Same as blow

CQ (1:57:17 pm): True

CQ (2:23:31 pm): How long is ur sons practice

SS (2:35:51 pm): I’ll be done at 3

SS (2:36:01 pm): So I can meet you around 3:30

CQ (2:36:12 pm): Ok

CQ (3:49:09 pm): U in aurora

SS (3:49:29 pm): Yah

SS (3:49:37 pm): Where you wanna mee

CQ (3:49:53 pm): Anywhere

SS (3:50:30 pm): Can you meet me at 555 williamgram

CQ (3:51:07 pm): When

CQ (3:59:16 pm): ?

SS (3:59:34 pm): In 10 min

CQ (4:02:36 pm): Ok

CQ (4:03:35 pm): Coming now should be 8 min or so

CQ (4:07:36 pm): 140

SS (4:07:58 pm): Yah

CQ (4:20:34 pm): Here

CQ (4:48:58 pm): Yeah bro I don’t like it

SS (4:49:20 pm): Ok I’ll exchange for you

CQ (4:51:35 pm): Ok thanks

CQ (4:51:42 pm): Burning my nose

SS (4:51:53 pm): Ok

Everything about this text exchange speaks to a drug transaction.

180Having said that, there is nothing about this conversation that suggests a transaction for fentanyl, rather the reference is to morphine, and it being the same as cocaine. The reference to “1.5” would seem to be the amount of drug being purchased in grams, as referenced by Det. Selwood. It is unlikely that Mr. Silvera would try to pass off 1.5 grams of fentanyl, cut or otherwise, as cocaine, or even morphine, at the price of $140 given the much higher price a dealer would get for fentanyl. Det. Selwood stated that a gram of fentanyl was in the price range of $180 to $300. The heaviest user of fentanyl Det. Selwood had seen would buy a half gram at a time and would share it. Det. Selwood had never seen fentanyl used as a cutting agent for anything. Frankly, while it is clear that Mr. Silvera sold Mr. Quevedo drugs, it is not clear from this exchange what drugs he sold him.

181The Crown argues that the only reasonable inference to be drawn is that the drugs provided by Mr. Silvera are the same drugs seized by police from Mr. Quevedo’s wallet and the same drugs that caused his death given that:

1. According to Mr. Rath and the text messages, Mr. Quevedo was purchasing 1.5 grams of drugs. PC Horodnyk confirmed that, when weighed back at the station, the baggie contained 1.39 grams of drugs. Mr. Rath said he and Mr. Quevedo each consumed a line, with Mr. Rath consuming a bit less than Mr. Quevedo. According to the Crown, this supports the inference that a small amount of drugs was taken from the package in the kitchen. The quantity left in the sample corresponds to the evidence of Mr. Rath.

2. The only drugs located were found in the kitchen, where Mr. Rath stated they were consumed. Fire Captain Bolsby remembered seeing a wallet in the kitchen when he entered the home. He retrieved the wallet from the dishwasher in the kitchen and, when he attempted to pull out the health card, a small baggie of white powder fell out. This was later seized. The Crown argues that the location of these drugs found in the kitchen supports that these were the same drugs that Mr. Rath told the court were consumed in the kitchen when they arrived home.

3. The drugs from the wallet were tested and they contained the same substances as found in Mr. Quevedo’s system, including the rare U-47700.

4. Dr. Ball concluded that these three substances were what caused the death of Mr. Quevedo.

182The question for this court is whether the inference that the Crown asks this court to draw is the only reasonable inference.

183Mr. Quevedo was having other contact with other people leading up to and on June 8, 2019, while also openly discussing the purchase of drugs with Mr. Rath and “Anthony”. The defence suggests that this could be Mr. Quevedo arranging and obtaining other drugs on those days. Mr. Rath agreed that there was more than one dealer. The defence points out that these other people were never investigated in any way. The Crown argues that the court cannot say that these conversations were for the purpose of obtaining substances. While this court agrees that one cannot say for sure that these other communications were in relation to drugs, it is not a suggestion out of “thin air” – or speculation – as the Crown suggests given that the communications are all occurring around the time that Mr. Quevedo is trying to purchase drugs.

184The defence suggests that Mr. Quevedo could very well have had other drugs with him when he got together with Mr. Rath that day – prior to his purchase from “Anthony”. The Crown argues that there is simply no evidence of this and the evidence suggests otherwise. This court has considered the following:

1. Mr. Rath did not see other drugs and was unaware of other drugs, although Mr. Rath would have no reason to and did not search Mr. Quevedo. There is no suggestion that Mr. Rath asked him about other drugs he may have on him. At best, Mr. Rath simply does not know whether Mr. Quevedo had other drugs. Mr. Quevedo was carrying a backpack that later was found to have an iPad with unidentified white powder on it. While this court appreciates that the powder was not in a quantity capable of testing according to Det. Fournier, this still leaves the substance as unidentified and leaves a question as to whether there were drugs in the backpack.

2. Mr. Rath and Mr. Quevedo went to purchase from “Anthony”. This court questioned why they would do that if Mr. Quevedo already had drugs. However, it seemed that Mr. Rath and Mr. Quevedo were looking to purchase cocaine from “Anthony”. If Mr. Quevedo had another substance on him that was not cocaine, he might still look to purchase cocaine with Mr. Rath from “Anthony”.

185The defence suggests that Mr. Quevedo could have been communicating with other people about the purchase of drugs not reflected in the phone records after 4:51 pm on June 8 when Mr. Rath went to take a nap. While anything is possible, there is no evidence that Mr. Quevedo used his phone to communicate with anyone after that time. Mr. Quevedo seemed to have no problem openly texting about purchasing drugs or using drugs. Why would he switch to Snapchat or some similar application at that time?

186The defence suggests that Mr. Quevedo obtained different drugs from another source after Mr. Rath fell asleep. This court does question why Mr. Quevedo would go to another source if he was getting more drugs, given that he was offered an exchange by Mr. Silvera – good customer service. It seems that he would logically get more drugs from Mr. Silvera. However, there is nothing to support that occurring. Although given that Mr. Quevedo did not like this product, perhaps this would cause him to look to another source.

187Mr. Quevedo had an unknown white powder on his fingernails. The Crown suggests that this is simply from the drugs that Mr. Rath described being done in the kitchen as Mr. Quevedo was the one who set up the drugs for consumption. The Crown argues that finding powder on the hands of Mr. Quevedo proves he did drugs - not that he did drugs twice. It was unclear to this court how much white powder was found on Mr. Quevedo’s hands initially. This court did question the Crown’s suggestion that this was the same white powder from two hours earlier. Again, while this court appreciates that the powder was not in a quantity capable of testing according to Det. Fournier, this still leaves the substance as unidentified.

188There was a bottle found near Mr. Quevedo with smoke staining in it. The Crown argues that there was evidence he was smoking cigarettes earlier and his cigarettes were in the basement. It is not at all clear to this court why this bottle with smoke staining would be related to cigarette smoking. As testified to by Det. Selwood, bottles are sometimes used to consume drugs. While there is no further evidence in relation to this bottle, such as when it was used or for what, it does suggest some type of drug use in the basement by Mr. Quevedo. Of course, the cocaine, fentanyl, U-47700 mixture was found upstairs in Mr. Quevedo’s wallet in the kitchen, not in the basement. In fact, there were no drugs said to be found in the basement, but there was no search for drugs in the basement. This court accepts that there were no drugs found on Mr. Quevedo. However, there was no search of the house conducted.

189Generally speaking, this court found Mitchell Rath both reliable and credible. He provided evidence in a clear and straight forward manner. He was careful with his answers and quick to say when he did not remember or did not know. He was open about his own drug use and that of Mr. Quevedo. He appeared to be attempting to help the court. He was materially consistent between in chief and cross examination. While his evidence was set out in more detail above, some of the salient points are as follows:

1. Mr. Rath admitted that they had discussed previously obtaining drugs to consume while hanging out on June 8. He attempted to purchase mushrooms which was unsuccessful. Mr. Quevedo was making his own inquiries. Messages on Mr. Quevedo’s phone from June 6-8, 2019 are indicative of attempts to purchase drugs. There are communications with other individuals who were not investigated.

2. Mr. Rath testified that Mr. Quevedo would do drugs more often than he would – which was 1-2 times per week or two weeks. He testified that Mr. Quevedo would use with other friends when Mr. Rath was not around. Those other friends would have their own dealers.

3. Mr. Rath was aware that “Anthony” was not the only person who would deal drugs to Mr. Quevedo. He had several sources to obtain drugs, as did Mr. Rath. Mr. Rath and Mr. Quevedo shared a couple of other dealers and he knew that Mr. Quevedo had other dealers. Mr. Rath did not know all of Mr. Quevedo’s drug contacts. Mr. Rath was aware that Mr. Quevedo had been using drugs for a few years by this point in 2019.

4. Mr. Rath did not know what Mr. Quevedo was doing on June 8, 2019 before they met up, other than some suggestion that he was with his sister.

5. Mr. Rath did not know if Mr. Quevedo had any drugs on him on June 8, 2019 when they met.

6. On June 8, 2019, after lunch and bubble tea, Mr. Quevedo and Mr. Rath attended in a parking lot of an apartment complex to meet “Anthony”.

7. Mr. Rath believed that Mr. Quevedo was purchasing cocaine. However, there was no discussion about the type of substance to be bought or the amount. Mr. Rath believed that he knew how much money was involved and he made his own calculations as to what that would be, but he did not remember conversations with Mr. Quevedo on that point. (Text messages between Mr. Quevedo and Mr. Silvera may assist on this point. Mr. Quevedo says he needs “1.5” – seemingly suggesting 1.5 grams. Mr. Silvera asks if he likes morphine, to which Mr. Quevedo states that he “never tried it” and Mr. Silvera says, “Same as blow”. Mr. Quevedo says, “True”. There is no further discussion about a product or amount, rather arrangements to meet. Seemingly, just before they meet, Mr. Quevedo confirms the price as “140” to which Mr. Silvera says, “Yah”. It seems clear that Mr. Quevedo was buying 1.5 grams of something for $140.) This court notes that Det. Selwood stated that morphine comes in liquid and pill form, with no mention of powder or pricing. As for cocaine, Det. Selwood testified that an average price for a half ball (1.7 grams) was $120-$140 with 1.5 grams being around the same.

8. Mr. Rath did not see the transaction happen. He did not see what, if anything, was exchanged. He did not see where Mr. Quevedo put what was received. By the time Mr. Quevedo came back to Mr. Rath’s vehicle whatever he received, if anything, was put away. Mr. Rath did not see any drugs at all before they were back at the residence. Mr. Rath agreed that he never confirmed with Mr. Quevedo what the substance was that was purchased that day.

9. Back at the residence, shortly after arriving, Mr. Rath said that they both consumed some drugs directly on the kitchen table. Mr. Quevedo poured out some drugs from a baggie. Mr. Rath did a portion of a line, while Mr. Quevedo did the line. According to Mr. Rath, he, himself, did not do very much, estimating “less than an inch”. As for Mr. Quevedo, he stated that he did “more than that…probably double”. He could not estimate the weight of the drugs.

10. Mr. Rath did not see where Mr. Quevedo got the drugs from. He also did not see where Mr. Quevedo put the drugs after. Mr. Rath believed they were doing cocaine.

11. Mr. Rath was asked to describe the baggie that contained the drugs. He said it was a small Ziploc bag – inch and a half by an inch. He agreed that this clear baggie had nothing unusual about it, rather it was like many baggies he had seen before. Mr. Rath was never shown a picture of the baggie with the drugs or asked whether it was similar to the one he saw on that day. Mr. Rath was not asked what if anything was left in the bag.

12. Mr. Rath testified as to how he felt after he consumed the line. He said he felt slower than what he would expect from cocaine which usually made him feel energetic and amped up. He said that he felt sleepier and also agreed that he did not feel much of an impact. He did not describe feelings of euphoria or a lethargic warm sensation as described by Det. Selwood as some typical reactions of someone who consumed fentanyl. He also did not describe feeling upbeat, confident, having superhuman strength, anxiety, or unrest, as Det. Selwood described as some of the effects of cocaine.

13. Mr. Quevedo did not complain of anything after consuming the drug and looked completely fine.

14. After consuming the drugs, the pair went outside long enough for Mr. Quevedo to have a cigarette. Mr. Quevedo continued to look normal to him.

15. Upon returning inside back to the kitchen, Mr. Rath decided to go take a nap, admitting he had a long night the day before, and wanting to refresh for the evening to come. The timeline is not entirely precise, but it would seem that there was not a lot of time spent together after they returned from the cigarette. Mr. Rath was clearly upstairs sleeping for some time – seemingly more than two hours.

16. Mr. Quevedo was on the main floor when he went upstairs.

17. When Mr. Rath was upstairs, he cannot say what happened. He did not see anything unusual when he left Mr. Quevedo.

190The cell phone extraction evidence supports Mr. Rath and provides some timeline of the events:

1. Mr. Rath said he was planning to get mushrooms but was unable to. A message on June 8, 2019 at 12:34:33 pm from Mr. Rath to Mr. Quevedo states: “I’m talking to the dude now hes just re-upping then will contact me.” This shows that Mr. Rath was trying to get mushrooms - unsuccessfully. Mr. Quevedo then called Mr. Rath a few times. A short time later, Mr. Quevedo reaches out to Mr. Silvera to make a purchase. This may support Mr. Rath’s testimony that there were no mushrooms and no other drugs that came from Mr. Rath.

2. Early text messages on June 8, 2019 support Mr. Rath’s testimony that Mr. Quevedo was covering the cost of the drugs.

3. Mr. Rath stated that he drove himself and Mr. Quevedo to an apartment complex to meet “Anthony” and that upon arriving home, they went immediately to the kitchen to consume drugs. According to the text messages and cell tower evidence, the drug deal occurred at about 4:30 pm at 555 William Graham. Eighteen minutes later, at 4:48 pm, Mr. Quevedo sends a text to Mr. Silvera, “Yeah bro I don’t like it” and at 4:51 pm, “Burning my nose”. Therefore, it would appear that by 4:48 pm, the drugs obtained from Mr. Silvera had been consumed. Mr. Rath said that the drive from William Graham to his house was a couple of minutes. It is worth noting that Mr. Rath did not hear any complaints from Mr. Quevedo and said he seemed fine.

4. There is no further outgoing activity on Mr. Quevedo’s phone after that point. At 5:11:11 pm, there is an incoming call from “Mom” that is not answered. The Crown suggests that Mr. Quevedo is frequently on his phone according to the extraction and that the usage ends abruptly after 4:51 pm suggesting that he is incapacitated shortly after 4:51 pm. This court does not agree. According to Mr. Rath, the two of them went outside for Mr. Quevedo to have a cigarette right after doing drugs at the kitchen table. They then come back into the kitchen at which time Mr. Rath decides to go for a nap. Mr. Quevedo appeared perfectly fine during this time. This court does not accept that somewhere between 4:51 pm and 5:11 pm, Mr. Quevedo was necessarily incapacitated as opposed to just not answering or using his phone. It might make sense for someone not to take calls from their mother when they are doing drugs with a friend. Further, according to the phone records, there are large gaps in time where Mr. Quevedo does not use his phone – sometimes for several hours. Certainly by 8:30 pm, Mr. Quevedo is found unresponsive. The Crown argues that he was not wandering around the house for hours before this happened. However, there is no support for this argument. According to Mr. Rath, Mr. Quevedo was fine when he left him. There was no medical professional that pinpointed the time of death or even that it would have been closer to 4:51 pm rather than 8:30 pm.

191Det. Selwood testified that fentanyl is more expensive than cocaine – nearly double the price. According to Det. Selwood, a gram of fentanyl would sell for an average of $180 to $300. It is only logical that 1.5 grams of fentanyl would be even more. Further, Det. Selwood indicated that, in his experience, the heaviest user of fentanyl he had seen purchased half a gram. He explained that typically purchases of fentanyl are in smaller quantities given the pricing and potency.

192There was no evidence in this trial about prices of morphine or U-47700.

193As for the effects of various drugs, morphine is a depressant. If the one line they took was morphine, this would be consistent with evidence that Mr. Rath was feeling slower. The mixture seized from Mr. Quevedo’s wallet was a mixture which included, cocaine which is a stimulant, but Mr. Rath did not describe those effects after taking the drugs.

194A big unknown for this court is what happened while Mr. Rath was asleep. There are many reasons to believe that Mr. Quevedo consumed other drugs during this time. Mr. Quevedo was fine when Mr. Rath left him on the main floor of the house. There was white powder on Mr. Quevedo’s fingernails. There was a bottle with smoke staining inside near Mr. Quevedo. There was also the iPad with an unknown white substance on it found in Mr. Quevedo’s backpack. During his testimony at trial, there was no suggestion by Mr. Rath that the iPad was out during his time with Mr. Quevedo that day. This court does question why Mr. Rath produced Mr. Quevedo’s backpack to the police from his own bedroom. Why did Mr. Rath have the backpack upstairs in his room? Det. Fournier and PC Horodnyk gave inconsistent evidence about how the backpack came into the possession of police. Further, it must be remembered that there was no search of the house.

195It is also worth noting that there was inconsistent evidence about how Mr. Quevedo was found. Mr. Rath said that he found Mr. Quevedo lying on his back on the couch in the basement and that he did not move or search him. Firefighter Bolsby stated that Mr. Quevedo was found facing toward the back of the couch. This is odd given that by all accounts Mr. Quevedo was unresponsive.

196The Crown points out that there are no other substances in Mr. Quevedo’s system, other than the three substances found in the baggie in his wallet, suggesting that he did not take anything else. This, of course, assumes that any other drugs he took were something other than fentanyl, cocaine, or U-47700. If, for example, Mr. Quevedo took one of these substances, like cocaine or fentanyl, nothing else would show up on toxicology. If Mr. Silvera sold Mr. Quevedo the cocaine that Mr. Rath believed was being purchased, this was what they took in the kitchen, and then Mr. Quevedo took this other mixture obtained elsewhere found in the wallet while Mr. Rath was asleep, the toxicology would likely still be the same.

197The pathologist determined that it was acute toxicity of fentanyl, U-47700 and cocaine that caused death. The experts were not able to say how these substances were ingested, such as whether it was all at the same time. Dr. Beaudoin could not say when or how the fentanyl was taken. Dr. Beaudoin could not say when or how much cocaine was taken. Neither Dr. Beaudoin nor Dr. Ball could say how long it would take for the mixture to be fatal. Dr. Ball also stated that as for which of the three substances caused death, he said this was “unknowable”. Dr. Beaudoin confirmed that there was no morphine detected in the femoral blood. However, he also confirmed that there was no caffeine detected, despite the fact that one of the screens conducted could identify caffeine. (The Certificate of Analyst indicated that caffeine was detected in the mixture but was not certified.)

198Further, the toxicologist testified that the amount of time a drug will remain in someone’s system will depend on a number of factors, including the amount of drugs consumed and the metabolism of a person. It also depends on the characteristic of the drug, as each drug has a half life specific to that drug. The half life of these drugs was never properly explained at this trial, other than to say that morphine and fentanyl have similar half lives, but fentanyl has a wider range in its half life. Dr. Beaudoin stated that he believed both of these drugs was around 3-4 hours, but in some individuals, fentanyl can take up to 12 hours to reduce its concentration by half.

199Dr. Beaudoin explained that there are a lot of unknowns in determining how long a substance will be present in blood, which is why he could not say when a drug was taken or how much was taken, because he cannot accurately predict the starting point of a drug in the system.

200This court is left questioning whether morphine was the substance purchased from Mr. Silvera and consumed by Mr. Rath and Mr. Quevedo. Based on this evidence, the fact that morphine was not found does not assist with determining whether it was ingested earlier that day because it could have been out of the system by the time the blood was drawn and tested. This court accepts that the toxicologist was never asked specifically whether it was possible to take morphine between 4:30 pm and 4:51 pm and that it would not be in the blood when drawn. However, the toxicologist was asked about morphine and how long it would stay in the blood as compared to fentanyl. It should be noted that, according to Mr. Rath, he and Mr. Quevedo had one beer at lunch, maybe more, and ethanol was not detected. With the empty beer bottle near Mr. Quevedo, there is a possibility that Mr. Quevedo consumed an additional beer, but ethanol was not detected. This also leaves questions.

201The urine was not tested for other substances except ethanol. While this court appreciates that this would not have been toxicologically significant as to the cause of death, it might have shed light on other substances taken earlier that were no longer impacting the body but would have been present as part of this pooled sample.

202As for what this court does not believe happened during the time that Mr. Rath was asleep, this court does not accept the evidence of Triston Dennis that he attended and provided a partial refund to Mr. Quevedo in exchange for the drugs. Even if this court were to believe everything that Mr. Dennis said during his testimony, it is not at all clear that Mr. Dennis attended Stone Road and interacted with Mr. Quevedo. He could not describe the house or the location. He gave a very vague description of the person with whom he interacted. This could easily have been a different house and person altogether. Further, Mr. Dennis was less than forthcoming about his criminality and criminal convictions leading this court to have serious concerns about his credibility. It does not make a lot of sense that Mr. Dennis would involve himself in this transaction without asking any questions given his evidence that he did not want to get in any further trouble with the law. Further, the text messages do not support Mr. Dennis. If Mr. Silvera was sending someone over to partially refund Mr. Quevedo, one would think that this would have come out in the text messages. Also, the messages from June 13, 2019 from Mr. Silvera to Mr. Quevedo are apologetic in that he forgot to reimburse Mr. Quevedo, which does not support Mr. Dennis in saying that he had already provided Mr. Quevedo with some money. The defence claims that it would not make sense to have a discussion about money owed or being “ripped off” if Mr. Quevedo still had the drugs. This court does not agree. Mr. Silvera had earlier said he would make an exchange for him on a product his customer was not happy with and, five days later, he had not done so. Finally, it would make no sense for Mr. Dennis to provide a partial refund, given that he seemed to have money on him to provide a full refund.

203This court acknowledges that the only drugs found in the Stone Road residence was the mixture in Mr. Quevedo’s wallet. However, as stated a number of times, the residence was never searched. Again, this court questions why Mr. Quevedo’s backpack was in Mr. Rath’s bedroom.

204It should also be noted that nothing of any significance was found during the search of Mr. Silvera’s residence, other than money in a safe. There were no drugs, no paraphernalia, no small baggies, no digital scales. Having said that, this court appreciates that this search occurred four months after Mr. Quevedo’s death.

205As stated earlier, it is conceded that Stanley Silvera trafficked drugs to Mr. Quevedo on June 8, 2019. The Defence concedes that based on Mr. Rath’s evidence, together with the text messages, there is sufficient evidence to conclude that there was a transaction made on June 8, 2019. The focus for this court is on whether or not those drugs are those specified in the Indictment. The Crown made it clear that, in this case, they are alleging that this particular substance was trafficked and caused the death, therefore, in this case, the Crown agrees that the trafficking and manslaughter rise and fall on proving that Mr. Silvera trafficked this specific substance. If this court finds that Mr. Silvera trafficked in some other substance, or has a reasonable doubt about what the substance was, the Crown concedes that Mr. Silvera is not guilty.

206In a circumstantial case such as this, the court must be satisfied that the only reasonable inference is that Mr. Silvera is guilty. Based on the totality of the evidence, this court is unable to reach that conclusion. Having considered the totality of the evidence, even all together, the evidence is incapable of meeting the burden of proving Mr. Silvera’s guilt beyond a reasonable doubt. An inference of guilt is not the only reasonable inference that the evidence permits. Association and suspicion is not proof beyond a reasonable doubt. As for trafficking, there is overwhelming evidence, and a concession, that a drug deal occurred between Mr. Silvera and Mr. Quevedo. However, because of the particularized substance, and the acknowledgement by the Crown that this substance must be proven as the one trafficked, this court must be satisfied that Mr. Silvera trafficked this particular substance to Mr. Quevedo. Certainly, this is a possibility, but this court is not satisfied beyond a reasonable doubt that this is the case. The Crown has not proven that particularization, and the trafficking charge must fail for that reason. Flowing from that, the Crown has not established, beyond a reasonable doubt, that the substance sold by Mr. Silvera, whatever it was, was the substance that caused Mr. Quevedo’s death.

207As stated earlier, reasonable doubt is not an inference or a finding of fact that needs support in the evidence presented at trial. A reasonable doubt is a doubt based on reason and common sense; it is not imaginary or frivolous; it does not involve proof to an absolute certainty; and it is logically connected to the evidence or absence of evidence. This court is left with a reasonable doubt about whether Stanley Silvera trafficked the particular controlled substance to Christian Quevedo which admittedly substantially contributed to his death.

208An acquittal need not be based on a conclusion about innocence but can rest on an inability to conclude guilt. This is the case here. Mr. Silvera is, therefore, found not guilty of all charges.

NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written Ruling that is to be relied upon.