Court File and Parties

Court File No.: CR-23-00000056-0000 Date: 2025-08-19 Ontario Superior Court of Justice

Between: His Majesty the King and Jeremy Folk, Defendant

Before: The Honourable Justice J. R. Henderson

Counsel:

• J. Mazin, for the Crown
• Self-represented Defendant
• P. Rochman, appearing as amicus curiae

Heard: June 9, 10, 11, 12, 13, 16, 17, 18, and 20, 2025

Reasons for Judgment

Introduction

[1] On June 13, 2020, Matthew Grout ("Matt") and his brother, Robert Davies ("Rob"), played a round of golf together at a local golf course in Brantford, Ontario. Thereafter, they picked up their friend, Sheldon Gittens ("Sheldon"), and drove back to Rob's residence on Grey Street to socialize.

[2] The three friends then decided to purchase and consume some cocaine. Consequently, Matt arranged to purchase cocaine from the defendant, Jeremy Folk, whom he knew from previous drug transactions. The three friends drove to the defendant's house on Grand River Avenue where the defendant sold a substance, purportedly cocaine, to Matt.

[3] The Crown alleges that, after the transaction with the defendant, Matt, Rob, and Sheldon returned to Rob's residence where they each consumed the purported cocaine. They all had an adverse reaction. Rob died as a result. It is alleged that the substance that was sold by the defendant to Matt was in fact a mixture of cocaine and fentanyl.

[4] The defendant now stands charged that he unlawfully killed Robert Davies, and thereby committed the offence of manslaughter contrary to the provisions of the Criminal Code of Canada, R.S.C. 1985, c. C-46.

The Law

[5] Section 234 of the Criminal Code defines manslaughter as "culpable homicide that is not murder or infanticide." A person can commit culpable homicide in several ways. The route to manslaughter engaged by this case is provided in s.222(5)(a), which states that a person commits culpable homicide when he causes the death of a human being by means of an unlawful act.

[6] There are three essential elements of the offence of unlawful act manslaughter. To prove the offence, the Crown must establish beyond a reasonable doubt that: (i) the defendant committed an unlawful act, referred to as the predicate offence; (ii) the unlawful act presented an objectively foreseeable risk of bodily harm that is neither trivial nor transitory; and (iii) the unlawful act caused the death of a human being: see R. v. Javanmardi, 2019 SCC 54, [2019] 4 S.C.R. 3, at paras. 25-31; R. v. Creighton, [1993] 3 S.C.R. 3, at paras. 72-78; and R. v. H.C., 2022 ONCA 409, at para. 34.

[7] The courts have previously dealt with similar factual scenarios. In Creighton, the accused was charged with manslaughter by means of an unlawful act after injecting an acquaintance with cocaine with her consent. In R. v. Brazier, 2023 ONSC 3191, the accused was charged with manslaughter after supplying fentanyl and cocaine to a man who had just been released from a rehabilitation facility. In R. v. Worrall (2004), 189 C.C.C. (3d) 79, the accused was similarly charged after supplying heroin to his stepbrother. In all these cases, the accused persons were convicted of unlawful act manslaughter.

[8] The predicate offence alleged in this case is trafficking in a controlled substance, namely cocaine and fentanyl, an offence under s.5 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 ("CDSA"). To prove the predicate offence, the Crown must prove beyond reasonable doubt that the defendant intentionally trafficked in a controlled substance, and that the defendant knew the substance was a controlled substance: see R. v. Brodricks, 2021 ONSC 4466, at paras. 12-14.

[9] There is a long line of authority that a defendant's honest belief that he or she was trafficking in some other illegal drug, and not the drug alleged, is not a defence: see R. v. Williams, 2009 ONCA 342, 95 O.R. (3d) 660, at para. 19; R. v. Burgess, [1970] 2 O.R. 216 (C.A.); and R. v. Johnson, 2017 ONSC 1130, at paras. 17-18.

[10] As to the second element of unlawful act manslaughter, McLachlin J., writing for the majority in Creighton, at paras. 77-78, adopted an earlier statement in R. v. DeSousa, [1992] 2 S.C.R. 944, that "the test is one of objective foresight of bodily harm for all underlying offences. The act must be both unlawful… and one that is likely to subject another person to danger of harm or injury."

[11] In the Javanmardi decision, at paras. 28-30, the court confirmed that there is no independent requirement of objective dangerousness; rather, that requirement is subsumed in the fault element of the offence. The court stated at para. 31 that, "The fault element of unlawful act manslaughter is, as noted, objective foreseeability of the risk of bodily harm that is neither trivial nor transitory, coupled with the fault element for the predicate offence."

[12] Regarding causation, courts have considered both factual causation and legal causation. Factual causation is whether "but for" the defendant's actions, the death would not have occurred: see R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at paras. 43-45; R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30, at para. 15; and H.C., at para. 38. However, for criminal responsibility, where it is alleged that the defendant's unlawful act was a cause of the victim's death, the Crown must prove legal causation: see Nette, at para. 45; Maybin, at paras. 15-16; and H.C., at para. 39.

[13] In R. v. Smithers, [1978] 1 S.C.R. 506, at para. 24, the court stated that an unlawful act that is "at least a contributing cause of death, outside the de minimis range" constitutes a legal cause of death. This is so even if the act alone would not have caused the death. In Nette, the court interpreted the standard in Smithers to mean "a significant contributing cause": at paras. 71-73. Thus, in this case, to prove legal causation, the Crown must prove that the defendant's unlawful act was a significant contributing cause of Rob's death.

[14] Courts in Canada have consistently found that trafficking in a controlled substance is a legal cause of death where consumption of the substance leads to death: see Worrall, at para. 234; Brazier, at paras. 163-164.

The Issues

[15] The Crown's position is that the defendant committed an unlawful act by trafficking in a controlled substance, namely cocaine and fentanyl, contrary to the CDSA, that trafficking in those substances raised an objectively foreseeable risk of bodily harm, that the drugs in which he trafficked were purchased by Matt and consumed by Rob, and that the defendant's unlawful act was a legal cause of Rob's death.

[16] The defendant did not call evidence at the trial. Amicus, in consultation with the defendant, made most of the submissions that were for the benefit of the defendant. In summary, it is the defendant's position that the Crown is unable to prove beyond reasonable doubt that the defendant sold any substance to Matt, or, in the alternative, the Crown is unable to prove the nature of the substance that he sold. Further, it is the defendant's position that if I find that he sold a controlled substance to Matt, the Crown is unable to prove that the unlawful act of trafficking in that substance was a significant contributing cause of Rob's death.

[17] For reasons that I will set out in this decision, I find that the evidence is overwhelming with respect to the first two elements of the offence, namely that the defendant committed an unlawful act by intentionally trafficking in cocaine and/or fentanyl, and that the defendant's unlawful act presented an objectively foreseeable risk of bodily harm.

[18] The critical issue in this case, in my opinion, is whether the defendant's unlawful act caused Rob's death. There are a number of issues related to causation that I will deal with in this decision, namely: What drugs did the defendant sell? Did the three friends have any other drugs from any other supplier in their possession? Did Rob consume the drugs that the defendant sold to Matt? Were the drugs that were found in Rob's pocket part of the drugs that were sold by the defendant?

[19] I also note, regarding causation, that the concepts of factual causation and legal causation merge in this case. To prove legal causation, the Crown must prove beyond reasonable doubt that the drugs that the defendant sold to Matt were consumed by Rob, and that those drugs were a significant contributing cause of Rob's death. In this case, proof of factual causation is incorporated into proof of legal causation.

Analysis

[20] In my analysis, I intend to first make findings of fact regarding the sequence of events that occurred on June 13, 2020, and then make findings of fact with respect to the predicate offence and the objectively foreseeable risk of bodily harm. Finally, I will assess and determine the causation issue.

The Events of June 13, 2020

[21] In making my findings of fact, I rely primarily on the recordings from the video surveillance camera at Rob's residence on Grey Street, the extractions from Matt's cell phone that show phone calls and text messages between Matt and the defendant, Matt's testimony at trial and, to a lesser extent, Sheldon's testimony at trial. I also rely on the opinion evidence of the two experts who were called by the Crown and the observations of the police officers and paramedics who attended the scene.

[22] With respect to Matt's credibility, despite his memory issues, I found that, in giving his oral testimony, Matt appeared to be sincere and attempting to tell the truth. In particular, Matt acknowledged negative aspects of his character, such as his involvement in the drug subculture. He admitted that he was using cocaine regularly, and that he was attempting to hide his cocaine habit from his wife.

[23] Further, Matt readily agreed that there were some facts that he could not recall. For example, he acknowledged that he could not recall whether Sheldon and Rob were drinking alcohol at Rob's residence before they purchased cocaine. He also acknowledged that he did not recall what he said to the 911 operator or what his wife said to him when she arrived at Rob's residence.

[24] Matt also corrected his evidence where it was appropriate to do so. For example, he testified that he chopped the cocaine with a bank card before it was consumed, but when he was pressed about the possibility of using a razor, he acknowledged that he did not know what he used and that he may have used a razor. Also, he initially testified that he intended to take a cab from the convenience store, but he acknowledged that it was possible that he was going to take the cab from Rob's residence.

[25] Amicus submitted that Matt's credibility is undermined because there were several facts or events that Matt could not explain. For example, Matt could not remember the exact price that he paid to the defendant for the drugs, he could not explain how the plastic bag of drugs came to be in Rob's pocket, and he could not explain how Sheldon's cell phone ended up in a toolbox.

[26] In my view, those unexplained or missing facts do not necessarily undermine Matt's credibility. Matt testified, and I accept, that he has very little memory of events that occurred after he ingested what he believed to be cocaine at the defendant's house before he returned to Rob's residence. I find that many of the missing pieces in this trial can be explained by the poor memories of the witnesses, the effects of the drugs used by the witnesses, and the general frenzy in Rob's residence that ensued after the paramedics and police arrived to deal with three potential overdose victims.

[27] In summary, I find that I can generally rely on Matt's testimony, taking into account the fact that he does not remember everything that occurred.

[28] Regarding Sheldon's credibility, it was apparent at trial that Sheldon's memory was very poor. Throughout his testimony, Sheldon repeatedly stated that he did not remember anything. Moreover, Sheldon also was clearly incorrect with respect to several innocuous facts. He thought that he and Rob picked up Matt, but that was clearly incorrect. He thought they picked up a case of beer, but there is no video recording of anyone taking a case of beer out of Rob's car after they arrived at his building. On one occasion at trial, he was shown a recording from the video camera and immediately thereafter was asked what he saw, and he responded, "I didn't see anything."

[29] At times, Sheldon remembered some details, but his testimony was internally inconsistent. For example, he initially stated that Matt did not start to act strange until Matt had done a line of cocaine back at Rob's place, but he seemed to change his mind when he was shown a video recording of Sheldon and Rob waiting for Matt to get out of Rob's car while they were in the parking lot.

[30] Further, Sheldon's evidence about the description of the substance that he ingested at Rob's residence was wildly inconsistent. In direct examination, he said that it was "kinda yellowish… That's all I can remember". He then acknowledged that he had said to Officer Allan, in a phone interview on June 18, 2020, that it was "like a rock." Then, in a subsequent videorecorded police statement, he said that the substance was "cloudy and white… pressed into a cube." Further, at the preliminary hearing, he said it was a single yellow rock. His evidence at the trial after he was referred to these various prior statements was confusing at best.

[31] Finally, I note that Sheldon acknowledged that his memory is poor, in part, because of his medical issues that include epilepsy, diabetes, two heart attacks, and a lot of concussions. Overall, I find that Sheldon may be capable of providing some general information about the events that occurred, but his evidence should be treated with caution.

[32] Regarding the events of June 13, 2020, I find that Rob picked up Matt in his motor vehicle and drove him to a local golf course where they played a round of golf together. Rob was approximately 44 years old at the time. Matt is his younger brother. The two brothers lived separately in Brantford.

[33] After they finished their round of golf, in the late afternoon, Rob and Matt stopped at a tavern to split a pitcher of beer and then drove back to Rob's residence. Along the way, they picked up their friend, Sheldon.

[34] Rob lived in one of the two units on the top level of a four-plex on Grey Street. The video recordings show that Rob drove into the rear parking lot of his residence at 5:27 p.m., at which time the three friends exited Rob's car and entered the back door to Rob's building.

[35] Inside Rob's residence, I find that Matt, Rob, and Sheldon drank a small quantity of beer. They each had one or two cans of beer, but no more. At some point, the three friends began to talk about purchasing some cocaine to supplement the enjoyment of their evening. Between the three of them, it appeared that Matt was the person who was most likely to be able to find cocaine.

[36] Matt was a regular cocaine user at the time. I accept Matt's evidence that he was using cocaine in recreational quantities approximately four or five times per week. I also accept Matt's evidence that he used cocaine with his brother Rob when they got together to play golf or play cards approximately once or twice per month.

[37] Matt knew several people who could provide him with cocaine, including the defendant. I accept Matt's evidence that, generally when he wanted to purchase cocaine, he would send text messages to multiple potential suppliers and ask if they had any cocaine for sale. If he connected with a supplier who had cocaine for sale, they would text or phone each other to set up the terms of the sale and the location of the exchange.

[38] The evidence shows that Matt had purchased cocaine from the defendant in the past. I find that Matt and the defendant were first in contact with each other on May 11, 2020, at which time the defendant sold $50 worth of cocaine, about a half gram, to Matt.

[39] Thereafter, prior to June 13, 2020, the text messages show that Matt contacted the defendant on approximately ten different days with requests for cocaine. On some of those days, a transaction was not consummated, but I find that the defendant sold cocaine to Matt approximately six times between May 11, 2020 and June 8, 2020.

[40] On this particular day, June 13, 2020, Matt was in contact with two potential suppliers, but only the defendant had cocaine for sale. There was a text exchange between Matt and the defendant, commencing at approximately 5:35 p.m., in which the defendant offered to sell $100 worth to Matt for $80 to compensate for the poor-quality product from a prior sale. Later, between 6:36 p.m. and 6:37 p.m., Matt texted that he would like to purchase two grams and asked, "What kinda deal can u do for 180?"

[41] For reasons set out herein, I find that Matt arranged to purchase approximately two grams of cocaine from the defendant, and that the parties agreed that Matt would pick up the cocaine at the defendant's house on Grand River Avenue. Further, while enroute to the defendant's house, I find that Matt was attempting to negotiate a price of something less than $200.

[42] The video camera recordings show the three friends exiting the rear of Rob's building, getting into Rob's vehicle, and exiting the parking lot at 6:26 p.m. I accept Matt's evidence that he did not have any money, but that Rob and Sheldon were going to pay for the cocaine. Accordingly, when they left the parking lot, Rob drove to a nearby convenience store where he used an ATM to withdraw some money. He then gave $200 to Matt for the purchase.

[43] From the convenience store, the three friends drove to the vicinity of the defendant's house on Grand River Avenue. Matt initially testified that the drive took ten to 15 minutes. In cross-examination, he said that the drive to the convenience store took two to three minutes, then it was another five to ten minutes to the defendant's house.

[44] They did not want to stop their vehicle in front of the defendant's house. Therefore, Rob stopped his vehicle in the area of Grand River Avenue before they arrived at their destination, so that Matt could exit the vehicle and walk a short distance to the defendant's door. Rob, with Sheldon in the vehicle, then drove around while they waited for Matt to purchase the cocaine.

[45] I accept Matt's evidence that he was allowed into the residence by a woman, and that he met with the defendant who was sitting on the couch. The defendant already had the product on a scale and ready for him. Matt said initially that he received it in a small baggie, but later he agreed that it was in a piece of a plastic bag that was tied up. For reasons I will explain, I find that Matt then purchased what he believed to be cocaine from the defendant in exchange for approximately $180.

[46] While Matt was at the defendant's residence, I find that the defendant put a substance, believed to be cocaine, on the coffee table, and that both Matt and the defendant ingested it. Matt's direct evidence was unclear as to the source of that substance, but in cross-examination he agreed that it came from the same source as the cocaine he received from the defendant.

[47] Thereafter, Matt left the defendant's house with the plastic bag of what he believed was cocaine. At approximately 6:55 p.m., Matt texted Rob to tell him that he was walking. Rob, who had been driving around the area, texted back at 6:56 p.m. the word, "Where." They eventually found each other, and Matt got back into the car. The three friends then returned to Rob's residence, arriving in the parking lot at 7:08 p.m.

[48] I accept Matt's evidence that he has little memory of the events that occurred after he got back into Rob's car. His next memory was waking up in Rob's residence lying on the kitchen floor. The only partial memory he has of this time was a memory of sitting in the rear of Rob's car and Sheldon turning around to tell Matt that he was acting weird.

[49] Matt's state of mind is confirmed by the video camera recordings of the rear parking lot at Rob's residence. The recordings show that Rob and Sheldon exited the vehicle and walked toward the rear of the building, but that Matt did not leave the back seat of the vehicle for some time. Rob then walked back to the vehicle and leaned in to talk to Matt. Eventually, Matt opened the car door and exited the vehicle, but he appeared to be very unsteady on his feet and took a circuitous route to get to the rear door of Rob's building.

[50] With respect to what occurred upon their return to Rob's place, I accept Sheldon's evidence that Matt put a substance on the coffee table and chopped it into three lines, one for each of them. Sheldon never saw the package or the bag that contained the substance.

[51] I find that Matt did his line first. Thereafter, I accept Sheldon's testimony that Matt started behaving in a strange manner. I find that Matt laid on the coffee table and was very fidgety to the point that Sheldon and Rob looked at each other wondering what was happening. Sheldon then did his line of the substance, and thereafter Sheldon admittedly has no memory until he woke up in hospital. I find that Rob did his line after Sheldon.

[52] After they each consumed a line of the substance, I find that all three of the friends passed out or lost consciousness. Matt was the first to wake up. When he regained consciousness, he was lying on the floor in the kitchen and the fridge door was open. I accept Matt's evidence that he knew something was wrong and he started to panic. Matt saw that Rob and Sheldon were sitting beside each other on the couch in the living room. They were both unconscious, but Sheldon was breathing. Rob was not breathing.

[53] Matt called 911 at 9:15 p.m. The 911 dispatcher instructed him to move Rob and Sheldon to the floor, which he did. Matt also performed CPR on Rob under the direction of the 911 dispatcher. Matt also called his wife, who had been trying to reach him.

[54] Two sets of paramedics arrived on the scene at approximately 9:20 p.m. One crew dealt with Sheldon and the other crew dealt with Rob. When police officers arrived at approximately 9:25 p.m., the two ambulance crews were performing CPR on Rob and Sheldon in the living room. Matt was on the landing area outside of Rob's apartment. I accept the evidence of Officer Kari Drake that Matt was very erratic, confused, and upset. He had trouble thinking clearly.

[55] Paramedic Nicole Hagan testified, and I accept, that when she arrived at approximately 9:24 p.m. Rob had no vital signs and was unconscious. His respiration was zero, blood pressure was zero, and heart rate was zero. She conducted or directed CPR on Rob, applied a defibrillator, and gave Rob two injections of epinephrine. Rob never regained consciousness and his vital signs remained absent. At 9:41 p.m., after consulting with a medical doctor by phone, the paramedics terminated their efforts to resuscitate Rob. Sheldon and Matt were both taken by ambulance to the Brantford hospital.

[56] Officer David Fishback attended at Rob's residence in response to the 911 call. In Officer Fishback's search of the body, he found a plastic bag in Rob's front pocket that contained five small white hard rocks mixed with some white powder. That plastic bag and its contents were sent to Health Canada for analysis. The Certificate of Analyst shows that the substance in the bag contained cocaine, fentanyl, phenacetin, and caffeine.

Medical Cause of Death

[57] There is little dispute as to the medical cause of Rob's death. Dr. Daryl Mayers, a toxicologist, testified that Rob's blood contained both fentanyl and cocaine at the time of his death. Dr. Tyler Hickey, the forensic pathologist who conducted the postmortem examination, testified that Rob's death was caused by an overdose of a combination of fentanyl and cocaine. I accept the expert opinions of both witnesses.

[58] Regarding fentanyl, the detailed toxicological testing confirmed that the concentration of fentanyl in Rob's blood was 73 nanograms per milliliter (ng/ml). Studies have shown that the minimum concentration of fentanyl that can cause death is 3 ng/ml. Dr. Mayers explained that in the studies the average concentration of fentanyl that caused death was 25 ng/ml, but the range of concentrations of fentanyl that caused death varied from 3 to 383 ng/ml, depending upon the tolerance levels of each person.

[59] Dr. Hickey testified that the amount of fentanyl found in Rob's body, namely 73 ng/ml, was in the higher end of the range that he has seen with respect to fentanyl deaths. Dr. Mayers' opinion was that the amount of fentanyl found in Rob's blood can certainly cause death, but that death would not necessarily be caused by this amount of fentanyl depending upon the tolerance level of the individual. Dr. Mayers deferred to Dr. Hickey's opinion as to the cause of death in this case.

[60] Regarding cocaine, the detailed toxicological testing showed that Rob's blood contained 0.16 milligrams per liter of cocaine. However, I accept that it is difficult to assess the amount of cocaine in the system at the time of death because of the quick elimination rate for cocaine. I also accept that the amount of cocaine required to cause death is difficult to determine. Dr. Hickey testified, and I accept, that there is no safe amount of cocaine as cocaine can cause the heart rate to rapidly increase, which can result in death.

[61] The amount of alcohol found in Rob's blood and urine was not high. I accept Dr. Mayers' opinion that it would be the equivalent of about one standard drink. Also, the testing disclosed a small amount of an analgesic known as phenacetin, which is known to be used as a cutting agent by drug traffickers.

[62] In light of all of this evidence, I accept Dr. Hickey's opinion that Rob's death was caused by toxicity from a combination of fentanyl and cocaine. He could not determine which drug was the dominant contributor to death.

The Predicate Offence

[63] In concluding that the defendant committed the predicate offence, I rely primarily on Matt's testimony, the extractions from Matt's cell phone, and the video camera recordings from Rob's residence.

[64] In my view, the text messages and Matt's oral testimony establish that Matt knew the defendant as a cocaine trafficker. I find that Matt had purchased cocaine from the defendant on several occasions in the past, and that their entire relationship was that of cocaine seller and cocaine buyer.

[65] With that history, when the three friends decided that they wanted to purchase cocaine, Matt knew that the defendant was a potential supplier. Matt had initially sent a text to the defendant in mid-afternoon that day, but the defendant did not reply until approximately 5:35 p.m. Matt also contacted another potential supplier at 5:08 p.m., but the subsequent text messages showed that the other supplier did not have any cocaine for sale.

[66] I find that the text messages between Matt and the defendant that occurred between approximately 5:35 p.m. and 6:37 p.m. clearly indicate that the defendant had cocaine for sale and that the defendant and Matt were negotiating a drug transaction. For example, at 5:42 p.m. the defendant texted, "What u needing." At 5:47 p.m., the defendant texted that he would sell "100 for 80 bucks." At 5:49 p.m., Matt texted that "the stuff I got before that was unbelievable…" The defendant texted at 5:51 p.m. "its usually bomb." At 6:30 p.m., the defendant texted, "How much u wontt (sic)."

[67] The negotiations between the defendant and Matt were interrupted briefly while Matt had a text exchange with his wife, but by 6:10 p.m. the defendant and Matt started to text again when Matt informed the defendant that he was at his older brother's house and "him and his friends want." At 6:36 p.m., Matt asked to buy two grams, and then at 6:37 p.m. texted "what kinda deal can u do for 180." There were also two phone calls between Matt and the defendant at approximately 6:15 p.m. and 6:19 p.m.

[68] In my view, these text messages and phone calls establish that the defendant and Matt were negotiating a drug transaction whereby the defendant would sell a quantity of cocaine to Matt.

[69] Amicus and the defendant suggested that the Crown has not proved its case as the text exchange does not show that the parties were able to agree on a quantity and a price. That is, there is no definitive statement in the texts that a certain price would be paid for a certain quantity of cocaine. In my view, the fact that the defendant and Matt did not formally document their agreement is not troubling. Although the defendant and Matt were negotiating a transaction, they were not commercial lawyers who were drafting a formal agreement by way of their text messages. Most drug transactions in fact are not formally documented.

[70] Matt's oral testimony, which I accept, is that he and the defendant had agreed to a drug transaction through their texts and phone calls. The plan was to drive to the defendant's house where Matt would purchase two grams of cocaine from the defendant. Further, I accept Matt's evidence that, after stopping at a convenience store, Rob gave him $200 for the cocaine. I find that $200 was the price that Matt intended to pay for the cocaine, but that enroute Matt was still trying to negotiate a better price.

[71] Furthermore, Matt's testimony as to what occurred at the defendant's house confirms the drug transaction. Matt said that when he arrived at the defendant's house, the defendant had the cocaine on a scale, and that the quantity was not as much as Matt had expected. Therefore, it was agreed that the cost would be something less than the full $200. Matt believed he had $20 in change after the transaction. In fact, a $20 bill was found at Rob's residence when police arrived.

[72] Accordingly, I find that Matt paid $180 to the defendant in exchange for what he believed to be cocaine. The purported cocaine was provided in a piece of plastic bag that contained just less than two grams of the substance. I accept Matt's evidence that it looked like cocaine to him.

[73] On all of this evidence, I find that the defendant committed an offence under s.5 of the CDSA. I find that the defendant intentionally trafficked in a controlled substance, and that the defendant knew that substance in question was a controlled substance. Whether the defendant believed it was cocaine or fentanyl or a mixture of both makes no difference. Therefore, I find that the Crown has proved that the defendant committed an unlawful act.

Objectively Foreseeable Risk of Bodily Harm

[74] Given my finding that the defendant committed the offence of drug trafficking, the second element of the offence, the objectively foreseeable risk of bodily harm, is fairly straightforward. Courts have regularly accepted that there is an objectively foreseeable risk of bodily harm that is neither trivial nor transitory where the predicate offence is trafficking in a controlled substance: see Creighton, at para. 82; Brazier, at paras. 173-176; and Worrall, at para. 15.

[75] In Worrall, at para. 15, Watt J. found that there did not appear to be any real controversy that trafficking in heroin, by injecting another with the controlled substance, or by providing the substance in injectable form, was an unlawful act that is likely to injure the other person.

[76] In Johnson, at paras. 26-28, Code J. accepted the comments of the preliminary hearing judge that there were significant dangers associated with using and consuming street drugs as their purity is suspect, and substances can be cut into street drugs. Thus, someone who provides street cocaine to another person reasonably ought to know that it may not be pure, and that there is an objective foreseeability that the substance may cause some degree of bodily harm. In that case, the court found that whether or not the accused knew that there was heroin mixed with the cocaine, he was responsible for providing the substance.

[77] In Brazier, at para. 174, Boswell J. noted that trafficking in controlled substances was illegal for very good reasons as such substances can be very harmful, and that those reasons were widely known and understood.

[78] In my view, the same sentiment expressed in those cases applies to the present case. Street cocaine and fentanyl are both dangerous drugs, the supply of which to another person creates a foreseeable risk of bodily harm. It does not matter whether the defendant believed that the substance was cocaine or fentanyl or a mixture of both. In this case, the defendant's act of trafficking in a controlled substance presented an objectively foreseeable risk of bodily harm to the consumer.

[79] Therefore, I find that the Crown has proved beyond reasonable doubt the second required element of the offence, namely that the unlawful act presented an objectively foreseeable risk of bodily harm.

Legal Causation

[80] As I indicated previously, legal and factual causation merge in this case. That is, if I find that the defendant sold drugs to Matt and those drugs caused Rob's death, then the unlawful act was a significant contributing cause of death, and Rob's death would not have occurred "but for" the defendant's unlawful act.

[81] In this case, the causation issue can be distilled into two questions. First, did Rob consume the drugs that the defendant sold to Matt? Second, were the drugs that were found in Rob's pocket part of the supply of drugs that the defendant sold to Matt?

Did Rob consume the drugs that the defendant sold to Matt?

[82] Regarding the first question, I find that none of Rob, Matt, or Sheldon had any cocaine or similar substance in their possession before they left Rob's residence at approximately 6:26 p.m. The three friends wanted to consume cocaine and, as of approximately 5:00 p.m., they wanted to try to find a supplier. Common sense suggests that they would not be attempting to find a drug supplier if they already had cocaine or a similar drug in their possession.

[83] Further, I find that, when the three friends decided that they wanted cocaine, Matt took the lead in attempting to find a supplier. He was in contact with two potential drug sources. Of those two sources, only the defendant had cocaine for sale. Thus, after approximately 5:35 p.m., the only potential source of cocaine that was under consideration was the defendant.

[84] Still further, I find that when the three friends left Rob's residence at 6:26 p.m. their plan was to drive to the defendant's house to purchase cocaine. There was no other plan to purchase cocaine from any other source. Matt testified that he had made the arrangements with the defendant. Sheldon confirmed that he believed that they drove to the area of Grand River Avenue to purchase drugs from a supplier who was known to Matt.

[85] Thus, it is apparent from the evidence of Matt and Sheldon that the plan was to drive to the area of Grand River Avenue, purchase some cocaine from Matt's supplier, and then return to Rob's residence to consume the cocaine.

[86] In making my findings, the timeline is important. I find that the three friends were away from Rob's residence between 6:26 p.m. and 7:08 p.m., a total of 42 minutes. This was the only time during which they could have purchased any drugs. I find that, given the events that occurred, there was no possibility that the three friends could have purchased drugs from any other source during this time period.

[87] In particular, I find that the friends left the parking lot of Rob's residence at 6:26 p.m., and drove to a local convenience store so that Rob could use the ATM. I accept Matt's evidence that the convenience store was a two-to-three-minute drive from Rob's place. I also accept Matt's evidence that they were inside the convenience store for another two to three minutes getting money.

[88] Thereafter, Matt gave mixed evidence as to the length of time it took to drive to the defendant's place. He initially said it was a ten-to-fifteen-minute drive, and later said it was a five-to-ten-minute drive after the convenience store. Sheldon simply testified that it seemed to be a long drive. When they arrived in the area of Grand River Avenue, Matt was on the street walking for up to one minute before he entered the defendant's house. Matt testified that he was inside the defendant's house for about "five minutes, tops ten."

[89] Then, it appears that Matt was on the street for one or two minutes after he left the defendant's house. This is confirmed by a text exchange between Rob and Matt at 6:55 p.m. and 6:56 p.m., at which time Matt was walking and waiting for Rob to pick him up. If he was picked up at 6:56 p.m. and the parties arrived back at Rob's place at 7:08 p.m., the return trip took about 12 minutes. This is consistent with Matt's evidence.

[90] Considering this evidence as a whole, I find that the events described by Matt, and Sheldon, generally account for the entire 42 minutes that they were away. I find that they had no time in which they could have stopped to obtain drugs from another source. Furthermore, once they returned to Rob's place, the video recordings show that they did not leave Rob's building again before the paramedics arrived.

[91] Back at Rob's place, Sheldon's evidence is consistent with the view that they consumed the drugs they had just purchased. Sheldon recalls that it was Matt who prepared three lines of the drugs, and therefore it can be inferred that Matt still had possession of the drugs that he had purchased from the defendant. When Sheldon was asked about the source of the drugs, he said that the cocaine they did came from "where we just went."

[92] Based on all this evidence, I find that the three friends had one and only one source of cocaine and that was the defendant. They did not have any other cocaine or similar substance in their possession. Matt purchased what he believed to be cocaine from the defendant. There was no time during which they had the opportunity to purchase cocaine or a similar substance from any other person. Therefore, I find that the drugs that were consumed by all three friends at Rob's residence were the drugs that were sold by the defendant to Matt.

Were the drugs in Rob's pocket part of the drugs that the defendant sold to Matt?

[93] Regarding the second question, were the drugs that were found in Rob's pocket part of the drugs that the defendant sold to Matt, the answer depends largely on the description of the drugs provided by Matt. Matt testified that the drugs he purchased from the defendant looked like cocaine. The substance was white and powdery. After his memory was refreshed from his videorecorded police statement, he agreed that the drugs were white, rocky, and pebbly. He thought they were like "little chunks with powder mixed in." He testified that the chunks were about an inch in size, but he immediately corrected himself and said, "a quarter inch." Later, he said "millimetres," and then he agreed to a suggestion of "a millimetre."

[94] I find that Matt's description of the drugs he purchased generally matches the description of the drugs that were found in the bag in Rob's front pocket. The photographs taken by Officer Fishback show a plastic bag containing five small white rocks mixed with white powder. Officer Fishback estimated that each rock was approximately a half centimetre in diameter. In my view, whether the chunks of the substance were a half centimetre in diameter, or one millimetre, or a quarter inch, is of no moment. The description of small white chunks or rocks mixed with white powder is consistent.

[95] The only real inconsistency on this point comes from Sheldon who provided several different descriptions of the drugs. One of the descriptions provided by Sheldon, that the drugs appeared to be white and cloudy and pressed into a cube, may fit the look of what was found in Rob's pocket, but other descriptions, such as the drugs being yellow, do not fit. Given Sheldon's inconsistency, and the fact that Sheldon only saw the drugs when Matt was chopping the substance into a line, I completely disregard Sheldon's description.

[96] Therefore, I find that drugs found in the plastic bag in Rob's pocket matched the description of the drugs that Matt had purchased from the defendant.

[97] Moreover, I find that the amount of the drugs found in Rob's pocket supports the theory that those drugs were part of the supply that had been sold by the defendant to Matt. On Matt's evidence, the original amount of drugs purchased was just less than two grams. Each of the three friends did one line of the substance. If we assume that each line is approximately .1 gram, then the left-over amount would weigh something less than 1.7 grams. In fact, the substance found in the bag in Rob's pocket, plus the bag itself, weighed 1.66 grams.

[98] For these reasons, I find that the drugs found on Rob's person were part of the supply of drugs sold by the defendant to Matt.

[99] In submissions, amicus brought to my attention the fact that in this case there seems to be some evidence that is missing or absent. For example, police officers did not thoroughly search Rob's residence, and if they had done so, there may have been better evidence as to whether there were any other illegal substances in the residence. Further, police officers did not search the cell phones that were owned by Rob or Sheldon, and if they had done so, there may have been better evidence as to whether there was any other source of drugs. Amicus also pointed out that the police cannot explain how the drugs ended up in Rob's pocket. There was no DNA testing done on the bag.

[100] In the case of an incomplete police investigation, I acknowledge that the defendant is entitled to question the failure of police to pursue certain leads as discussed in R. v. Bero (2000), 39 C.R. (5th) 291 (Ont. C.A.), at para. 57, as the absence of evidence in some cases can be important in deciding whether the Crown has proved its case beyond reasonable doubt. However, the law is well settled that an accused does not have a constitutional right to an adequately investigated case, nor does the accused have a right to a particular kind of disclosure, or type of investigation: see R. v. Spackman, 2012 ONCA 905, at para. 108.

[101] The defendant's concern here about the police investigation raises the question of an absence of evidence, but it does not negate the evidence before the court. If there is missing evidence, the court must still determine the case. The question is whether the Crown can prove its case based on the evidence before the court.

[102] In this particular case, for reasons I have just explained, I conclude that Rob consumed drugs that had been sold by the defendant to Matt, and that the remaining portion of those drugs were found in Rob's front pocket by police officers. The drugs found in Rob's possession, and the drugs consumed by Rob, contained fentanyl and cocaine. Rob died as a result of a fentanyl and cocaine overdose. Therefore, I find that the Crown has proved beyond reasonable doubt that the defendant's unlawful act of selling a controlled substance to Matt is a legal cause of Rob's death.

Conclusion

[103] In summary, I find that the Crown has proved beyond reasonable doubt all of the elements of this offence. The defendant committed the unlawful act of trafficking in a controlled substance, the unlawful act presented an objectively foreseeable risk of bodily harm, and the unlawful act was a legal cause of Rob's death.

[104] Therefore, I find the defendant guilty of the offence of manslaughter, as charged.

J. R. Henderson, J.

Date Released: August 19, 2025

[1] This decision was given orally on August 19, 2025. At that time, I indicated that written reasons would follow. These are those reasons. They may vary in the precise language used. Where there is a variation between the oral and written reasons, the written reasons prevail.