R. v. Jackson, 2014 ONCJ 386

Court File No. 13-2842 Citation: R. v. Jackson , 2014 ONCJ 386 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. SARAH JACKSON R E A S O N S F O R J U D G M E N T OF THE HONOURABLE JUSTICE B. E. ZABEL on May 30, 2014, at HAMILTON, Ontario

APPEARANCES : N. A. Flynn Counsel for the Crown D. D. Paquette Counsel for Sarah Jackson ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S Reasons for Judgment Page THE COURT: Is counsel ready to receive judgment then? MR. PAQUETTE: Yes, sir. THE COURT: You can have a seat, ma'am. R E A S O N S F O R J U D G M E N T ZABEL, J. (Orally): Overview : Sarah Jackson was arraigned as follows: On or between the 19th day of January 2013 and the 20 th day of January 2013, at the City of Hamilton, did unlawfully kill Edward Cieslik, and thereby commit manslaughter contrary to the provisions of

Section 236 (

b) of the Criminal Code of Canada . A plea of not guilty was entered and the matter proceeded to trial for some six days and then was remanded to today for judgment. The onus is on the Crown to prove the guilt of Sarah Jackson, as arraigned, beyond a reasonable doubt. To determine if the Crown has met the onus placed upon it, I have carefully reviewed all of the evidence presented at this trial as recorded in my personal notes and the trial transcript. In so doing, I have weighed the evidence and have drawn all reasonable inferences that can be drawn from it.

I have, as well, reviewed all the exhibits filed and considered the essential elements of the offence charged, the case law filed by counsel, the Supreme Court of Canada decision in R. v W.D ., and the written and oral submissions of counsel. In reviewing the testimony of the witnesses presented, I have assessed both the credibility and reliability of their testimony.

Normally I would make individual assessments of credibility, but in this case I find that all persons who testified were generally credible and reliable, and doing their best to recall their involvements in this matter in a both truthful, and straightforward and credible manner.

Facts : The facts as presented are tragic but relatively straightforward. The deceased, Edward, Cieslik, was determined to obtain and inject heroin for the first time in his life. He eventually convinced Sarah Jackson to procure the heroin for him. Then, at her residence, it was divided into three doses; two of which were injected into his body eventually resulting in his death. Evidence : I will now highlight the relevant portions of the witnesses’ testimony and make my findings of fact, and then apply the applicable law to the found facts. The first person to testify was Ryan Sanderson.

At the time, he was 33 years of age. Was not working. In January 2013, he’d known the accused. Was an old friend. He had known her for some three to four years; started dating her that month, in fact, started dating her the day that Edward died. He indicated that the accused was a personal injury lawyer but at the time was not working, and that she had previous issues with drug use. And he said she had the same issues he did, use of heroin and cocaine. He also said he knew the deceased, Edward Cieslik, and had met him once through Sarah, and he met him several months before his death.

He indicated that on January the 19th he was at home at his parents' place. He had contact with Sarah. She called him to obtain some heroin - asked him to obtain some heroin. He was at his parents’ in Dundas. He made some calls to try to find the heroin that Sarah wanted. They eventually met up, and then Sarah drove and they went to Barton and Ottawa area and bought heroin. Heroin was purchased at the Centre Mall. He said he purchased two half grams for $200, and that she gave him 120 and he paid $80, and he said he got the heroin half for Ed and half for himself. They then picked Ed up.

He got into the back seat, and Sarah then drove him back to his parents’ house in Dundas, and said Ed had a bag of clothes with him and gear to do the heroin. He was dropped off, then, at his home in Dundas. Then he had some further telephone contact and texting with Sarah. It was between - later that evening, he said between 12:30 and 1:30 a.m., and she texted him that Ed was asleep. In fact, she sent him a picture of Ed sleeping in his bed. And then she eventually came down and picked him up at his house in Dundas, and then they went back to her house. He said when he arrived at the house, Ed was sleeping.

He could hear loud snoring. They laid down - and he and Sarah laid down on the couch; watched T.V with Sarah in the living room, had sex, and then around 4:30 or 5:00 a.m. went to sleep in the extra bedroom. He said he woke up around twelve and dealt with some texts on his phone, watched T.V. in the T.V. room. He couldn't hear Ed snoring and didn't check on him. And he said that Sarah eventually attended to Ed, and she couldn't wake him up. He said Ed was cold and unresponsive on the bed; looked to be in the same position that he’d first seen him.

He had no pulse, was stiff, presented like he was dead, freezing cold. There was a panic and Sarah then called the police, called 911. And they were - he was doing chest compression, and Sarah was giving him mouth-to-mouth as per instructions from the 911 operator. And they tried to revive him for some five minutes until the EMS arrived. He was also there when the police eventually attended at the house. And then on January 23rd, he was again at Sarah's house when some friends of Ed’s came to the house, and some conversation was had between all of them.

And he indicated as well, at some point in time, Sarah told him she showed Ed how to inject the heroin. He said he’s not sure when she told him that, probably a couple days after the event. Under cross-examination, he indicated that when Sarah was driving him from the east end back to his home in Dundas, Ed was excited at the prospects of taking heroin. And then he said when he got home, he injected the heroin and he did the whole half-gram within an hour. It was not that strong and he had no unusual effects.

He also indicated when he noticed that Ed was in the bedroom, it sounded like he was sleeping, and both he and Sarah believed he was sleeping. He was in bed, had his eyes closed, and was snoring. He also indicated that he was not concerned about taking the amount of heroin - Ed taking the amount of heroin that he’d done, and all the heroin was gone. Michael Savoie then testified. He had known - he was 46 years of age at the time he testified. He had known Ed as a friend. They had met at a bar. Michael Savoie was an admitted drug user and he indicated that he and Ed had done crack before.

He believed that Ed had diabetes. He said he never knew Ed to use heroin but that they talked about it. He asked me what it was like since Michael had done heroin. I never really - he said he never really took it so he couldn’t explain it - just told him what friends had told him. So Michael had not taken heroin. And he asked me if I could get him some and I said, “No, I would not.” And I told him not to go near it. And then

there's some further telephone contact later, and he again told Ed not to take the heroin. Under cross-examination, he indicated that “Ed had told me Sarah Jackson was interested in doing it with him,” the heroin being, and then he said it was a bad idea. So the tenor of his testimony basically was that Ed had expressed an interest in taking heroin and Michael, an experienced drug user, tried to dissuade him from taking heroin. The next person to testify was Rebecca Dietrich, an EMS worker, who attended at the accused’s residence.

When she saw the deceased he had no vital signs, and she told us of her involvement with the deceased in performing her duties. The fourth witness was Brandon Lawless. He was a friend of the deceased. He knew that his friend was a diabetic. He said Ed had taken, in the past, cocaine, ecstasy, Percocet. He had taken drugs frequently and less in the last couple of years, and he said he had probably taken cocaine bi-weekly in the last two years. But, he never knew Ed to use intravenous drugs or take heroin.

In January 2013, they texted, had telephone conversations, and he found out that Ed had renewed his contact with Sarah Jackson on Facebook. After the death of Edward Cieslik, he got a Facebook message from Sarah Jackson to call him. He spoke to her. She told him, in effect, that there was an accident, that Ed had passed away in regard to heroin use, and that Ed had belongings at her home. And he drove down to Sarah Jackson’s home on Wednesday, January 23rd, to pick them up. And he was at the home along with an Andy Kozak and a Jordy Lishman, and that Sarah and her boyfriend were at the house.

During the conversations they had, he indicated that Sarah told him she did not inject the deceased, at first. And then after he asked her to look in his eyes and tell him the truth, she admitted she had injected him the first time, but the second time he had injected himself. Under cross-examination, he indicated that he felt Ed had an addictive personality, and that he knew he was trying to get his hands on heroin. Joanne Howard, a police officer, then testified as to her involvement.

She was the first officer to arrive at the residence of the accused and indicated that the accused had told her that the deceased had injected himself with a half a gram of heroin. Steven De Taeye, a close friend of the deceased and an acquaintance of the accused, testified then as to his contact with the deceased before his death including attendance at a concert in Toronto with him on January the 16th. He said that at the concert Ed was in a good mood, and that at some point in time while he was at the concert, he got a telephone call from Sarah.

He went down the hall to talk to her and he said he heard part of the conversation. He heard Ed saying to her, “Why don't you get me some heroin?” After that call, he said he spoke to Ed about not doing heroin. He shrugged it off and said it was not a big deal. And that his last phone call with Ed was on January the 19 th . He said it ended well. He promised him he wasn’t going to do heroin and again that he had no reason to worry. He said, under cross-examination, that all conversation with Ed about heroin use was in the last three weeks of his life.

And there were about six to ten conversations when he said he would like to do heroin. He also said Sarah had an issue and he was going to try help her with that issue. Another friend of the deceased, Andy Kozak, then testified. This witness indicated he had known Ed since high school. They were close friends. That he had gone to a concert with Ed and others in January, and that after the death of Ed, he went to the home of Sarah Jackson to collect some of his belongings with some other individuals.

He said he was in the living room with Sarah and Ryan; that she led us to Ed's room; and that she admitted to him that Ed wanted to try heroin and that she was trying to source it for him. She arranged for the purchase of the heroin and then she went through the division of the heroin and the doses that were taken. She said Ed asked for help with an injection, and she said she helped him and injected him. She indicated that - he indicated that Sarah said he got high and felt good - good mood. They did dishes, had records on. He was ready for another dose. He did the last dose on his own and she didn't help him.

He then felt tired. He went to lie down and fell asleep in the bedroom, and he started to snore. And he indicated from his knowledge, he said that Ed was a loud snorer. Under cross-examination, he said that Ed was a risk-taker and a recreational drug user. He had used cocaine and crack cocaine. And he indicated that Sarah Jackson told him to use methadone to avoid doing heroin. And she made it clear she didn't do any heroin that weekend. She told him as well that Ed had told her he was interested in trying heroin. And she said that more than once. And that he said that more than once.

And he was very persistent in his request for her to obtain that heroin for him.

The next witness was Joanne Cain, a police officer who testified as to her attendance at the accused's residence. She indicated that during her attendance she had a conversation with Sarah and Ryan. Sarah told her that Ed, her friend, came to visit. He had never taken heroin before and at 10:30 p.m. he took three hits in his arms. She checked him at 2:00 a.m. and he was snoring. And she asked if anyone had injected Ed. And they both said, “No,” and didn’t see anyone else inject him. And Sarah said that Ed appeared high when he got to her house.

And she indicated that the scene was treated as a suicide scene and not a homicide or a drug house, because the deceased died from self-injection and because of his other medical conditions. Now the last officer to testify was Timothy O'Keefe, an identification officer who presented photographic exhibits and the DVDs of the accused's interviews with the police, which were then played in court. The next witness was Rachelle Wallace, a forensic toxicologist, who gave expert evidence in her field of expertise.

She had analyzed blood sample taken from the deceased, which showed a concentration of morphine of 120 nanograms per millilitre. The witness then described the effect of the breakdown of heroin in the human body. In highlighting her testimony, she indicated that the concentration found, in this case, in the body of the deceased is a potential fatal dose. She indicated that a heroin over-dosage can cause a person to fall asleep - fall into deep sleep prior to death.

There was coke in his body in a low dosage - cannot say when the cocaine was used, or the quantity taken, as cocaine can stay in the system and can be detected for up to 12 hours. She indicated as well, under cross-examination, that not everyone dies from the concentration in question. She said the reading of 120 can be in the recreational range and the fatal range.

And reading from the cross-examination of this witness, the trial transcript, page 237, starting at the top of the page to keep it in context - and she says: And then we have situations where people use heroin and can achieve high concentrations without having fatal toxicity so the two, recreational and fatal, are entirely overlapping. Question: Isn't that true for heroin consumption? It is true to some degree. But heroin, I don’t have large concentration range at the very high end that I would consider more likely recreational.

I couldn't rule it out as possibly recreational but as the concentration gets higher, I would expect the toxicity to be more severe and for it to impact more individuals. So, it gets to the point where it would be very difficult to survive the morphine concentration associated with heroin administration. Question: What level are you talking about? Specifically, if you gave me a morphine concentration in the thousands and say, you know, is this possible it’s recreational?

I would say, it’s possible, but that is a very high concentration of morphine from heroin and looks to me more likely to be a potential heroin toxicity. Question: What about 120 mg. per ml.? That’s [question] in a recreational range? Answer: That could be recreational but it certainly is within the fatal range. Question: And the recreational range? Yes, it could. Question: There’s an overlap at the point? Pardon? There’s an overlap? And, Yes, there is an overlap.

And I note from the conclusions in the report of this witness filed that she indicated in her review of the literature that in four deaths attributed to heroin overdose through injection, the morphine concentrations ranged from 21 to 801 mg. per ml. And here, the reading was 120. The last person to testify at this trial was a pathologist who did the post-mortem examination of the deceased, Edward Cieslik, Dr. Chitra Rao.

And she concluded - her conclusion was - reading from her report: Death in this 36-year-old insulin-dependent diabetic with coronary artery disease is attributed to acute morphine (heroin) poisoning.

She testified as to the details of her examination, and of note is that she indicated that the dosage in question is potential fatal concentration; and that the heroin dosage can cause a person to fall asleep prior to death; and she also indicated that from observing the needle marks on the deceased’s body - and there’s a suggestion by the accused of a second injection into the same site - she doesn’t see any evidence of a second injection but that doesn’t mean there was not a second injection. And then reading from page 249 of the examination in-chief of this witness, question: And it was suggested by Ms.

Jackson, in her DVD statement to the police, of a second injection of heroin at the same injection site found. In your external and internal microscopic examination of this injection site, did you find any evidence of that? I didn't see any two hemorrhagic tracks, and I didn’t see needle puncture points on the skin surfaces, but that doesn’t mean that there was not more than one, because if you use a very fine needle, it may not leave any marks on the skin. And then under cross-examination on this issue, at page 261, question: And that’s the one injection site you can find? Yes.

Question: Doesn't mean that there are not others that you couldn’t find? Yeah, in the same area he could have had one or more but the fine needle that the Crown showed me, it may not leave any marks. Question: Could that be - it could be what they call a clean shot? That's correct. And then the witness further indicates that: In a heroin death, the central nervous system is suppressed, and breathing - and all the breathing muscles are affected. And eventually, there’s difficulty breathing, lapse into unconsciousness, and then death.

She indicated as well that snoring indicates difficulty in breathing as one of the symptoms. And she says that respiratory issues can develop immediately or be prolonged for a few hours. There's individual variation. As indicated, the heroin poisoning caused the death but she cannot provide a time of death between the fatal injection and death. Heroin suppresses the central nervous system and then there's a slow respiratory death. Analysis : So that concluded the presentation of the evidence at this trial, and in reviewing all the evidence presented, I make the following findings.

Sarah Jackson committed the offence of trafficking by arranging, at the deceased’s request, the purchase for him of half a gram of heroin, and then dividing it into three one-sixth gram dosages and injecting the deceased with one of the doses at his request. Sarah Jackson gave five statements to the police in regard to this matter; January 20, 2013 in her home to Officers King and Howard; and then three statements recorded on DVD at the police station on January 20, February 13, and May 8, 2013.

I find the statements to be truthful except for her initial denial of having injected the deceased with heroin, which she eventually admitted to on February 13 and May 8. I find that Sarah Jackson injected the deceased once with one-sixth a gram of heroin at approximately 8:00 p.m. on January the 19th. The first one-sixth of a gram dosage of heroin was injected after the deceased had wasted the first dosage. So it was the second dosage but the first one injected. The first one had been wasted by the deceased in a failed attempt at injection.

I further find that the deceased injected himself with the final, fatal dose at 11:00 p.m. on January the 19 th . This last injection caused his death and if he had not injected himself, on what’s been presented to me, this matter would not be before the court. In that regard, statement of Sarah Jackson, her DVD statement which is Exhibit 17 - in part from the statement, Sarah Jackson: So he asked me to show him how, and I did. And he had brought a half-gram of heroin, and he had - oh, I had divided it into three.

He said, “How much do I do?” I said. “Something small because you’re not - you've never done it before, and I divided it into three. And then Sarah Jackson, later on: I would do more than a gram a day myself when I did it. I could do up to two grams a day when I did it. I thought it was a totally safe amount for anyone, even someone who hadn’t done it before. And I mentioned before, I - and I didn't explain this to you - that I told the police and my friends, too, he had broken it up into three, the half-gram - and the first time he tried to make the shot, he botched it.

He didn't, he didn't do it properly and he - and it got ruined. So Detective Pacey: Okay, now sorry. How do you mean it got ruined?

Sarah Jackson: It became unusable. He used the filter to draw up the liquid into a needle and he didn’t pull it properly and then he used another one, and it - I don't know, the liquid got - the liquid all disappeared. Detective Pacey: Okay. And, Sarah Jackson: And it just - the heroin disappeared into it and it just became unusable so he didn’t even consume a half a gram that night. So there was two shots left out of three. He asked me to make up the second one for him ‘cause he - and I guess maybe he thought he knew how to do it and didn't know how to do it. I showed him how to do it.

And then later on, Detective Pacey: You said you prepared it, then you showed him what to do? Sarah Jackson: I showed.... Detective Pacey: What? What do you mean? Sarah Jackson: Okay. I showed him how to prepare it when I prepared it for him. Detective Pacey: Okay. Sarah Jackson: I tied - he tied off his own tie on his right arm, I think it was. And he asked me where should he do it? I showed him the vein. He tried to put it in. It didn't work the first time. Not much of a surprise there. I showed him a second one.

He asked me, “Would you do it?” I said, “I don't want to.” He, like, “Just go ahead.” I said, “Okay.” And I injected him with the first shot, which was the second shot. The second one he did it on his own. Then later on, Sarah Jackson: And he asked if I thought it was okay to do a second shot. It must have been around 11, maybe-ish. And I said that if that’s what he thought. He thought he was ready. He didn’t look bad or anything to me. I said, “Okay.” And he did his second shot then around 11- ish. I don't know the exact time.

In considering the offence of trafficking under Section 5(1) of the Controlled Drugs and Substances Act and the definition of trafficking as defined in Section 2(1) of the Act , I find that Sarah Jackson’s act of trafficking in heroin was completed when she injected the deceased with the one dose of heroin at approximately 8:00 p.m., and she committed no further acts of trafficking in heroin after that time. There are two avenues for the Crown in this case to obtain a conviction on the offence of manslaughter as set out by the Supreme Court of Canada in Creighton [1993] 3 SCR, page 3.

Firstly, prove beyond a reasonable doubt that the accused committed an unlawful act that caused death; or secondly, that the accused was criminally negligent and thereby caused the death. I will first deal with the unlawful act and the issues of foreseeability of risk of bodily harm, and factual and legal causation. In arriving at my judgment, I am mindful of the following statements of law by the Supreme Court of Canada on this issue. The first is in the Queen and Nette reported at [2001] SCC Judgments, number 78. The instructive comments are in paragraphs 44, 45 and 46.

Initially, paragraph 44: In 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 the death 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 a contribution of the accused to that result. Where factual causation is established, the remaining issue is legal causation. Legal 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. And then continuing on later in this paragraph: 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. The nature of the inquiry at the stage of determining legal causation is expressed in the quote, G. Williams, Textbook of Criminal Law , as follows: “When one has established a question of but-for causation, the further test to be applied to the but-for causation in order to qualify for legal recognition is not a test of causation but a moral reaction.

The question is whether the result can fairly be said to be imputable to the defendant. If the term “cause” must be used, it can be best distinguished in this meaning as the “imputable” or “responsible” or “blameable” cause, to indicate the value-judgment involved. The word “imputable” is here chosen as best representing the idea.

Whereas the but-for cause can generally be demonstrated scientifically, no experiment can be devised to show that one of a number of concurring but-for causes is more substantial or important than another, or that one person who is involved in the causal chain is more blameworthy than another.” In a given case, the jury must not engage in a two-part analysis of whether both factual and legal causation has been established.

Rather, in the charge to the jury, the trial judge seeks to convey the requisite degree of factual and legal causation that must be found before the accused can be held criminally responsible for the victim’s death. And in the same judgment, paragraph 74: Causation issues arise more frequently in manslaughter cases, in which the fault element resides in a combination of causing death by an unlawful act, or by criminal negligence, or mere objective foreseeability of death. As the cases illustrate, causation tends to arise when a factual situation is involving multiple parties.

Paragraph 77: The difficulty in establishing a single, conclusive medical cause of death does not lead to the legal conclusion that there were multiple operative causes of the 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 may 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. And then, paragraph 83: As I stated in Cribbin , causation is a legal rule based on concepts of moral responsibility and is not a mechanical or a mathematical exercise. And then lastly I have carefully reviewed the Supreme Court decision in the Queen and Maybin, which is reported at [2012] SCC Judgment number 24.

I’m not going to read into the record, but the paragraphs that I find important are paragraphs - to this case - are paragraphs 23, 24, 25, 26, 27, 28 and 29. Dealing with the issue of factual causation, I have found that the dosage of heroin injected by Sarah Jackson did not cause death. That is based on the expert testimony of Ms. Wallace and Dr. Rao combined with the testimony of Sarah Jackson that the deceased seemed fine after taking the first dose, and was not exhibiting any signs of toxicity.

And it was only after injecting himself with the second dose that after some time, and in fact, after injection of the second dose at around 11:00 p.m. the two of them continued to hang out, play music, talk and make plans for another hour. And it wasn't only ‘til between - according to Sarah Jackson - between 12:00 and 12:30 a.m., that he became drowsy and fell asleep. He did not pass out quickly after his last short of heroin. Dealing with the issue now of legal causation, the Crown has submitted to the court, the Ontario Court of Appeal decision in the Queen

and C.W . [2006] Ontario Judgment at page 1392 for the proposition that the deceased’s voluntary ingestion of drugs is not an intervening act. I agree with the defence submission that this case is confined to its facts and does not stand for the general proposition that a voluntary drug overdose cannot be an intervening act breaking the chain of causation. In that case, the victim was a 13-year-old female and the 41- year-old accused had encouraged and promoted the use of illegal drugs, which he supplied.

In our case, we have an adult victim who is an experienced recreational drug user, including the use of cocaine. Though he had never taken heroin, he was persistent in his quest to inject heroin and was not dissuaded by his friends who had advised him not to take this potentially dangerous drug. He saw Sarah Jackson as a person in a position to satisfy his desire, and finally his persistence wore her down and she obtained the heroin for him. And he even came prepared to inject the heroin with his own kit to facilitate the injection.

There is no binding appellate authority for the proposition submitted by the defence that in this case, the voluntary consumption of heroin by the accused is an intervening act, which absolves Sarah Jackson for any criminal liability for unlawful act manslaughter, and to quote the defence position on that, page 16 of the defence submissions, paragraph 56: Cieslik’s own drug use, his persistence in wanting to try heroin despite the urging of his friends, and his dogged pursuit of Sarah Jackson to acquire heroin for him, all speak to the fact that Cieslik was familiar with drugs, was familiar with the risks, and nonetheless made a volitional (ph) decision over the course of a week period no less, and he was going to try heroin.

Cieslik’s decision to inject himself with the fatal dose of heroin was his decision, and his decision alone. It was an intentional independent act of a third party, sufficient to sever the causal link between Sarah Jackson’s act of trafficking and his own unfortunate death. This is directly analogous to the facts of Kennedy and the deceased’s decision to inject in that case. To rule otherwise would be to disregard the important principal of autonomy that underlines our criminal justice system, and to unduly widen the net of criminal liability.

The Kennedy case referred to by defence counsel is a decision of the House of Lords in England, reported at [2007] UKHL, page 38.

Reading from the decision and highlighting the relevant portions, paragraph 2: The question certified by the Court of Appeal Criminal Division for the opinion of the House neatly encapsulates the question raised by this appeal: “When is it appropriate to find someone guilty of manslaughter where that person has been involved in the supply of a class A controlled drug, which is then freely and voluntarily self-administered by the person to whom it was supplied, and the administration of the drug causes his death?” The agreed facts are clear and simple.

The appellant lived in a hostel in which Marco Bosque and Andrew Cody, who shared a room, also lived. On 10 September 1996 the appellant visited the room which Bosque and Cody shared. Bosque was drinking with Cody. According to Cody, Bosque told the appellant that he wanted "a bit to help him sleep" and the appellant told Bosque to take care that he did not go to sleep permanently. The appellant prepared a dose of heroin for the deceased and gave him a syringe ready for injection. The deceased then injected himself and returned the empty syringe to the appellant, who left the room.

Bosque then appeared to stop breathing. An ambulance was called and he was taken to hospital, where he was pronounced dead. The cause of death was inhalation of gastric contents while acutely intoxicated by opiates and alcohol. Paragraph 6: It is well established and not in any way controversial that a charge of manslaughter may be founded either on the unlawful act of the defendant ("unlawful act manslaughter") or on the gross negligence of the defendant.

This appeal is concerned only with unlawful act manslaughter and nothing in this opinion should be understood as applying to manslaughter caused by gross negligence. Paragraph 7(3), quoting from another case, the Queen and Cato: There is now, as already noted, no doubt but that the appellant committed an unlawful (and criminal) act by supplying the heroin to the deceased. But the act of supplying, without more, could not harm the deceased in any physical way, let alone cause his death.

As the Court of Appeal observed in the Queen and Dalby , "the supply of drugs would itself have caused no harm unless the deceased had subsequently used the drugs in a form and quantity which was dangerous". So, as the parties agree, the charge of unlawful act manslaughter cannot be founded on the act of supplying the heroin alone. Paragraph 14: The criminal law generally assumes the existence of free will.

The law recognizes certain exceptions, in the case of the young, those who for any reason are not fully responsible for their actions, and the vulnerable, and it acknowledges situations of duress and necessity, as also of deception and mistake. But, generally speaking, informed adults of sound mind are treated as autonomous beings able to make

their own decisions how they will act, and none of the exceptions is relied on as possibly applicable in this case. Thus D is not to be treated as causing V to act in a certain way if V makes a voluntary and informed decision to act in that way rather than another. And then they quote Professor Glanville Williams, in part: Your volitional act is regarded (within the doctrine of responsibility) as setting a new 'chain of causation' going, irrespective of what has happened before.

And then there’s a further quote: The free, deliberate, and informed intervention of a second person, who intends to exploit the situation created by the first, but is not acting in concert with him, is normally held to relieve the first actor of criminal responsibility. I find paragraphs 15, 16, and 17 significant. And, going back to paragraph 18: This is a matter of some significance since, contrary to the view of the Court of Appeal when dismissing the appellant's first appeal, the deceased committed no offence when injecting himself with the fatal dose of heroin.

If the conduct of the deceased was not criminal he was not a principal offender, and it of course follows that the appellant cannot be liable as a secondary party. It also follows that there is no meaningful legal sense in which the appellant can be said to have been a principal jointly with the deceased, or to have been acting in concert. The finding that the deceased freely and voluntarily administered the injection to himself, knowing what it was, is fatal to any contention that the appellant caused the heroin to be administered to the deceased or taken by him.

And in paragraph 19, in part: This, on the facts, is an inevitable finding. The appellant supplied the heroin and prepared the syringe. But the deceased had a choice whether to inject himself or not. He chose to do so, knowing that he was doing it. It was his act. And in paragraph 20, in part: But the crucial question is not whether the defendant facilitated or contributed to administration of the noxious thing but whether he went further and administered it.

What matters, in a case such as the Queen and Rogers and the present, is whether the injection itself was the result of a voluntary and informed decision by the person injecting himself. In the Queen v Rogers , as in the present case, it was. That case was, therefore, wrongly decided. And then at paragraph 25: The answer to the certified question is: "In the case of a fully-informed and responsible adult, never". The appeal must be allowed and the appellant's conviction for manslaughter quashed.

I find the Kennedy decision to be persuasive in dealing with the issue at hand, especially when there’s no Canadian appellate authority on this. The principle being that the voluntary act of an adult in ingesting a lethal dosage of an illegal drug, as in this case, I find is an intentional, independent act, which severs any causal link between the accused’s unlawful act of trafficking and the unfortunate death of the deceased. I find that in applying this principle - the Kennedy principle, as I will call it - to the case at hand, it absolves Sara Jackson from any unlawful act responsibility.

Dealing now with the issue of the accused's criminal negligence causing death:

Reading

Section 219.1 of the Criminal Code , Criminal Negligence: Every one is criminally negligent who in doing anything, or in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons. And, 219.2, Duty: For the purposes of this section, “duty” means a duty imposed by law. I find the actions of the accused did not show a wanton disregard for the safety of the deceased. The deceased did not present to the accused as being in a situation of distress, or that he was suffering from an overdose. She checked on him a number of times after his injection.

He appeared to her to be normal, and when she discovered that was not the case, she took all appropriate emergency steps. It has not been shown beyond a reasonable doubt that she breached any duty that she owed to him. Conclusion : In conclusion, in careful consideration of everything presented to me, I find the Crown has not proven the guilt of Sarah Jackson on the charge as arraigned beyond a reasonable doubt, and there will be a finding of not guilty registered. MR. PAQUETTE: Thank you very much, Your Honour. THE COURT: Thank you, counsel. MR. PAQUETTE: Is there a CDSA information? THE COURT: Oh, yes.

We have that too, don’t we? MR. PAQUETTE: I’ve spoken to Ms. Antoniani about that. Had Ms. Jackson been convicted, that charge would have been withdrawn. Having been acquitted, her position - she will consent to Ms. Jackson’s release on her own recognizance, and we may want to transfer that information to bail court to facilitate that. THE COURT: Yes, we should do that. So, how do we effect that so we can deal with that today? MR. PAQUETTE: I suggest we just transfer it to courtroom 204. MS. FLYNN: I don’t have that information before the court today. THE COURT: Oh, we don’t? MS. FLYNN: It’s not on our docket.

MR. PAQUETTE: Maybe it’s on Monday. Could you ask? It may be up Monday. I’ll have to double check. Could you request that it be brought forward to 204, Your Honour? THE COURT: Yes. That information - just for the record, what is the information exactly? MR. PAQUETTE: It’s a CDSA information for possession of heroin - cocaine. Cocaine, sorry. THE COURT: So, it’s one count? MR. PAQUETTE: I think so. THE COURT: It’s one information we’re talking about? MR. PAQUETTE: Yes. THE COURT: And it’s presently - it’s up on Monday? MR. PAQUETTE: I have a note in my diary, it’s Monday, but I thought it might still be here.

THE COURT: Crown, do you have any information on this? MS. FLYNN: No, Your Honour. THE COURT: Okay. MR. PAQUETTE: Mr. Fraser does.

MS. FLYNN: It’s a federal matter. MR. PAQUETTE: And I have an email from Ms. Antoniani. THE COURT: Okay, well I direct it be brought forward to 204 today to be dealt with as indicated. MR. PAQUETTE: Thank you very much, Your Honour. THE COURT: Thank you. MS. FLYNN: Thank you, Your Honour. THE COURT: Thank you. MS. FLYNN: If I may be excused? THE COURT: Thank you, counsel. And I’d like to - just a minute - Mr. Paquette, I’d like to thank both of you for the very professional way you’ve handled yourself in this difficult case - difficult facts.

You know, I’m sure the family is here and it’s been a very difficult case for everyone, but you’re both very professional and you both represented your respective sides of the case with great professionalism. And I know there’s a good personal relationship between the two of you as well, which helps when we have to deal with these very unfortunate matters, and I thank you both for that. MR. PAQUETTE: Thank you, Your Honour. MS. FLYNN: Thank you, Your Honour. MR. PAQUETTE: I thank you for the effort you’ve put into your judgment. MS. FLYNN: Thank you.