R v Haas (CJ), 2016 MBCA 42

Citation: R v Haas (CJ), 2016 MBCA 42 Date: 20160428 Docket: AR15-30-08354 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Barbara M. Hamilton Madam Justice Jennifer A. Pfuetzner BETWEEN: HER MAJESTY THE QUEEN ) B. F. Bonney ) for the Appellant Respondent ) ) N. M. Cutler and- and - ) C. R.

Savage ) for the Respondent ) CURTIS JAMES HAAS ) Appeal heard: ) November 30, 2015 (Accused) Appellant ) ) Judgment delivered: ) April 28, 2016 On appeal from 2014 MBQB 99, 305 ManR (2d) 67 HAMILTON JA [1] The accused appeals his conviction by judge alone for unlawful act manslaughter arising from the morphine overdoseof a young woman (W.H.), who was staying with the accused in his apartment.

The unlawful act was trafficking morphine contrary tosection 5(1) of the Controlled Drugs and Substances Act, SC 1996, c 19. [2] The key issue in this appeal is whether the trial judge erred in concluding that the Crown had proved the element ofcausation beyond a reasonable doubt. The accused acknowledges that he gave W.H. morphine pills, but asserts that the chain ofcausation was broken because she took the pills herself.

He also asserts that the conviction was unreasonable, because the trial judgemade palpable and overriding errors with respect to how many morphine pills W.H. ingested and when. [3] The accused seeks an acquittal, or in the alternative, a new trial. [4] The trial judge also convicted the accused of criminal negligence cause death and two counts of trafficking morphine,one for trafficking to W.H. and the other for trafficking to another friend, A.M.

Relying on the Kienapple principle (Kienapple v R, (SCC), [1975] 1 SCR 729), the trial judge stayed the criminal negligence cause death conviction and the conviction fortrafficking morphine to W.H. The criminal negligence cause death conviction becomes an issue only if the manslaughter appeal isallowed. [5] The trial judge sentenced the accused to three years for the manslaughter, and one year concurrent for the traffickingmorphine to A.M.

The accused seeks leave to appeal his sentence of three years in the event that the manslaughter conviction isoverturned, but the criminal negligence cause death conviction is sustained. [6] For the reasons that follow, I would dismiss the appeal for the manslaughter conviction. Therefore, I need not addressthe criminal negligence cause death conviction or the accused’s application for leave to appeal sentence. Background

[ 7 ] On October 29, 2007, W.H. died of a morphine overdose shortly after being taken by ambulance to the hospital from the accused’s apartment. At the time of her death, she had a blood morphine level of 1,035 nanograms of free morphine per millilitre of blood. [ 8 ] W.H. was 20 years old. According to the autopsy report, she had no indicators of chronic drug use. The accused was 47 years old. He had taken morphine for pain from time to time.

W.H. had been staying with the accused in his apartment, where he had a supply of street morphine. [ 9 ] The crucial time period spans 32 hours, starting on Saturday evening, October 27, 2007, to very early Monday morning, October 29, when the accused called 911 and performed CPR on W.H. until the ambulance came. W.H. never left the apartment during this time. [ 10 ] On Saturday evening, A.M. was also at the apartment for a while. On November 27, 2007, she gave a sworn videotaped statement to the police. A.M. died in 2009.

The trial judge admitted her videotaped statement for its truth. [ 11 ] The accused provided a written statement to the police in the early morning hours of October 29, after the 911 call, and a videotaped statement to the police on May 15, 2008. The evidence at trial included these two statements. The accused did not testify at the trial. [ 12 ] In the accused’s first statement, he was not sure how many pills he gave W.H. but stated, “maybe 10”, and that he flushed the rest of his pills down the toilet.

He thought he had no more than 50 pills in the apartment. [ 13 ] The trial judge did not accept “all of” the accused’s evidence (at para 55). He found A.M.’s evidence credible and accepted it. [ 14 ] A.M. stated that shortly after 7:00 p.m. on Saturday, the accused gave her and W.H. four orange morphine pills each, which they consumed. The pills were stamped with 60 mg. He gave A.M. approximately 12 more pills, which she did not consume. She stated that, “He just kept giving us more.” She was not sure about how many he gave W.H. and she did not see W.H. consume any more.

She stated at one point that W.H. “was taking them all”, but it is unclear whether she meant that W.H. was receiving them from the accused or ingesting them. [ 15 ] A.M. described W.H. as seeming “high”. They both started to feel nauseous and A.M. left the apartment to go home. W.H. remained with the accused in his apartment. A.M. went to the hospital that evening where she was treated for a morphine overdose and later released. She saw the accused on Sunday, when she told him that she had gone to the hospital for a morphine overdose. [ 16 ] W.H. slept most of the 32 hours in question.

Late Sunday evening, the accused noticed that she was having difficulties breathing, and he attempted to assist her. He fell asleep at some point, but awoke around 1:00 a.m. on Monday to see that she was in dire straits and was vomiting. He called 911 and performed CPR on her, while he waited for the ambulance. [ 17 ] W.H. died in the hospital shortly after arrival, on Monday, October 29.

Expert Evidence [ 18 ] The Crown called Angela Chung, an RCMP toxicologist, as an expert witness for three main reasons: 1) to establish the type and dosage of the morphine pills that were taken; 2) to describe how the ingestion of a certain amount of morphine can translate into a blood morphine level; and 3) to give her expert opinion on the number of 60 mg morphine pills W.H. consumed according to W.H.’s blood morphine level of 1,035 nanograms of free morphine per millilitre of blood. [ 19 ] In her report, she described the factual scenario (scenario 1) presented to her before providing her opinion: Based on the information received, on 2007-10-27 sometime after 1800h, it is alleged that the victim ingested approximately 16 pills .

The pills were described as being orange in colour and stamped with 60 mg. They were subsequently identified to be morphine by the accused. On 2007-10-29 at 0054h the accused called the ambulance indicating that the victim was not breathing. The victim was conveyed to the Seven Oaks Hospital where she later died of a morphine overdose. The elapsed time between the time of alleged ingestion by the victim (i.e. sometime between October 27, 2007 at 1800h and October 28, 2007 at 0125h) and sample collection (October 29, 2007 at 0244h) is greater than 24 hours.

Due to the many factors that affect the pharmacokinetic properties of morphine, determining the exact number of pills that would have been consumed by the victim to obtain a plasma free morphine concentration of 1035 ng/mL is difficult.

However, based on the literature, if a nontolerant healthy adult ingested a bolus of morphine, 16 or more sustained release morphine pills would have had to be ingested in order to obtain a plasma free morphine concentration of 1035 ng/mL more than 24 hours post ingestion. [emphasis added] [ 20 ] Ms Chung testified that, for pharmaceutical and clinician purposes, different coloured morphine pills indicate different dosages and that, as of the date of her report, May 14, 2008, an orange morphine pill was a “sustained release” formulation with a strength of 60 mg.

In cross-examination she agreed that it was possible that the pills were a different dosage.

[21] Her evidence about blood morphine levels was quite technical in nature, and included concepts such as “peak plasmaconcentration” (usually achieved between two to four hours after ingestion for sustained release morphine), half-life elimination rate andthe “linear relationship” between the dosage and the mean plasma concentration.

Throughout her evidence, she emphasized that theeffect of these concepts differs greatly from one individual to another, depending on many variables, including a user’s health andwhether the user was “tolerant” or “non-tolerant” to the drug (in other words, whether the user had a history of using the drug). [22] She described how street morphine is often abused for euphoric effects, sedation and relaxation, and its toxic effectsinclude nausea and vomiting, pinpoint or constricted pupils, extreme drowsiness and sedation, and slowed or laboured breathing.

Shedescribed that sometimes a user will be in a state of semi-consciousness, but they can be aroused and will respond to questions. [23] For her report and opinion, Ms Chung relied on two studies. One involved 15 deaths from morphine or heroin. Shetestified that the varied results “[demonstrate] that the concentration level in individuals who have died from a morphine related death isvery variable and it has a very wide range.” The other study concerned 18 individuals.

She agreed in cross-examination that both studiesinvolved low numbers of subjects. [24] She also agreed in cross-examination that two other scenarios (scenario 2 and scenario 3) were possible to explain thelevel of morphine in W.H.’s blood at the time of her death. In scenario 2, W.H. took four pills initially, and later took a larger number ofpills. In scenario 3, W.H. took the pills four hours before her death. She testified that scenario 1 was the least likely scenario, due to thepeak plasma concentration of morphine being achieved 2-4 hours after ingestion.

She agreed that scenario 1 would be rare, and indicatedthat a life-threatening effect occurring after a delay of more than 20 hours from the time of consumption had only been reported once ortwice before. The Trial Judge’s Decision re Unlawful Act Manslaughter [25] The trial judge accepted Ms Chung’s evidence. Relying on her scenario 1 opinion and A.M’s evidence, he found thatW.H. took “at least 16” morphine pills (60 mg each) on Saturday evening.

He wrote (at paras 57-59): On the evidence before me, I find that [the accused] gave the morphine pills to both [W.H.] and [A.M.] on the evening of October 27th,as [A.M.] described. I also find that [the accused] corroborates the testimony of [A.M.] on this point when he says that “I allowed her tohave some”. As to the number of pills, I find that he gave [A.M.] 14 to 16 pills as [A.M.] stated in her evidence. The evidence of [A.M.]on the number of pills given to [W.H.] by [the accused] is a little less clear. However, based on [A.M.]’s testimony I draw the inferencethat he gave [W.H.] a similar amount of pills.

I am also basing this inference on the evidence of Dr. Chung regarding the blood plasmareadings indicating [W.H.] had 1,035 nanograms of morphine per millilitre of plasma preceding her death. Therefore, I find that [the accused] would have given [W.H.] at least 16 pills on the evening of October 27th. I also accept the evidenceof [A.M.] that she saw [W.H.] take four pills, and by take I mean ingest, and I find that she would have consumed at least 16 pills onOctober 27th. [A.M.] observed that [W.H.] was feeling nauseous and she appeared high. She was laughing and her eyes looked drowsy.

These symptoms are consistent with the evidence of Dr. Chung and Dr. Bshouty relating to the effects of morphine consumption. In hisstatement of October 29th, [the accused] stated he was not sure how many pills [W.H.] took but said “maybe 10”. Although I find theamount was higher than that, I note that even this is a dangerously high number of pills. Moreover, I note that there is no evidence that [W.H.] took any pills after that time. In fact, the evidence was that she was sleeping onand off on the Sunday until early Monday morning when [the accused] called 911.

Her condition on Sunday is consistent with someonewho overdosed on morphine. [emphasis added] [26] The trial judge was satisfied beyond a reasonable doubt that the accused’s actions contributed substantially to W.H.’sdeath by morphine overdose, that the unlawful act of trafficking morphine was dangerous and likely to injure W.H. and that the risk ofbodily harm arising from that act was objectively foreseeable and was neither trivial nor transitory. [27] He rejected the defence argument that the voluntary consumption of the pills by W.H. was an intervening act that brokethe chain of causation.

Conviction Grounds of Appeal and Positions of the Parties [28] In his factum, the accused set out four grounds of appeal: 1. The trial judge failed to properly apply R v W(D), (SCC), [1991] 1 SCR 742, in assessing the statements theaccused made to the police; 2. The trial judge erred in assessing whether the accused’s

section 8 Charter rights were violated when he gave his first statement tothe police at the apartment;

3. The trial judge erred in determining that causation had been established; and 4. The verdict is unreasonable and cannot be supported by the evidence. [29] At the appeal hearing, he abandoned the first two grounds of appeal. [30] The remaining two grounds of appeal concern the issue of causation. Relying on the House of Lords decision, R vKennedy (No 2), [2007] UKHL 38, [2008] 1 AC 269, the accused argues that the voluntary consumption of pills by W.H. was, at law, anintervening act that broke the chain of causation.

He also argues that the conviction is unreasonable, because the finding of the trialjudge that W.H. consumed at least 16 morphine pills on Saturday evening was a palpable and overriding error due to errors he made withrespect to the evidence of A.M. and Ms Chung. [31] The Crown responds that the trial judge was entitled to make the findings of fact that he did and, in doing so, he wasentitled to believe all, some or none of the evidence of the accused in his statements, accept A.M.’s evidence and rely on Ms Chung’sopinion.

The Crown says that the voluntary consumption in these circumstances does not break the chain of causation. Furthermore, itasserts that it does not matter when W.H. took the pills, or how many she took, as the consumption of pills given to her by the accusedled to her death. Analysis [32] The essential elements of the offence of unlawful act manslaughter are: 1. The actus reus is the commission of an objectively dangerous unlawful act, which causes death; 2. The mens rea is twofold:

a) the intent to commit the underlying unlawful act, and

b) the objective foreseeability of the risk ofbodily harm which is neither trivial nor transitory, in the context of the dangerous act.

See R v Creighton, (SCC), [1993] 3 SCR 3; R v KT, 2005 MBCA 78, 195 ManR (2d) 89, leave to appeal to SCC ref’d,[2005] SCCA No 416 (QL); R v Sinclair (GW), 2008 MBCA 15, 225 ManR (2d) 167, leave to appeal to SCC ref’d, [2008] SCCA No128 (QL). [33] The accused takes no issue with the trial judge’s findings that his trafficking in morphine to W.H. was objectivelydangerous, that the risk of bodily harm was neither trivial nor transitory and was objectively foreseeable in the circumstances. [34] As already stated, the issues in this appeal revolve around the element of causation.

In my view, the accused’s positionentails two questions: 1. What is the legal effect of the fact that W.H. consumed the morphine pills herself? In other words, does this, at law, create anintervening act that breaks the chain of causation? and 2.

Is the verdict unreasonable because the trial judge erred when he found as a fact that W.H. consumed at least 16 morphine pills allon Saturday evening? [35] The first question concerns whether the trial judge was wrong to reject the accused’s argument, relying on Kennedy,that the voluntary consumption of drugs by an autonomous individual will break the chain of causation. This raises a question of law. The standard of review is correctness. [36] The second question raises questions of fact and law. Whether a verdict is unreasonable is a question of law. R v RP,2012 SCC 22 at para 10, [2012] 1 SCR 746.

In RP, the Supreme Court of Canada explained when an appellate court may find a verdictrendered by a trial judge unreasonable (at para 9): To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, (SCC), [1987] 2S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, determine whether the verdict is one that a properlyinstructed jury or a judge could reasonably have rendered.

The appellate court may also find a verdict unreasonable if the trial judge hasdrawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trialjudge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted orrejected by the trial judge (R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19-21; R. v.

Beaudry, 2007 SCC 5, [2007]1 S.C.R. 190). [emphasis added] [37] The accused does not argue that the verdict was unreasonable based on R v Biniaris, 2000 SCC 15, [2000] 1 SCR 381. Rather, he says that the verdict is unreasonable because the trial judge made several palpable and overriding errors in his findings of factand drawing of inferences. A crucial question for the required analysis is whether any of the disputed findings of fact and inferenceswere essential to the verdict.

Question 1- Causation and Intervening Act [38] The accused asserts that the trial judge was wrong not to follow the reasoning of the House of Lords in Kennedy that

the voluntary consumption of drugs supplied by an accused person will sever the chain of causation. I disagree. The reasoning inKennedy is not consistent with the development of the law in Canada. [39] In Kennedy, the accused person supplied the deceased with a syringe of heroin, which the deceased injected intohimself. He later died as a result of alcohol and opiate intoxication.

The accused person was convicted at trial of manslaughter, butacquitted at the House of Lords, where the question was (at para 2): When is it appropriate to find someone guilty of manslaughter where that person has been involved in the supply of a class A controlleddrug, which is then freely and voluntarily self-administered by the person to whom it was supplied, and the administration of the drugthen causes his death? [40] The House of Lords’ answer to this question was: “In the case of a fully-informed and responsible adult, never” (atpara 25). [41] As is the case in Canada, the Law Lords noted that there must be an underlying dangerous, unlawful act for unlawfulact manslaughter.

However, they determined that the unlawful act of supplying the deceased with heroin was not dangerous in and ofitself because (at para 7): [T]he act of supplying, without more, could not harm the deceased in any physical way, let alone cause his death. As the Court ofAppeal observed in R v Dalby [1982] 1 WLR 425, 429, “the supply of drugs would itself have caused no harm unless the deceased hadsubsequently used the drugs in a form and quantity which was dangerous”.

So, as the parties agree, the charge of unlawful actmanslaughter cannot be founded on the act of supplying the heroin alone. [42] The Law Lords also considered

section 23 of the Offences Against the Person Act 1861, 24 & 25 Vict c 100, todetermine whether the accused person was guilty of an unlawful act under that statute. This provision created three separate offences: 1)administering a noxious thing to another person; 2) causing a noxious thing to be administered to another person; and 3) causing anoxious thing to be taken by another person.

They concluded that the accused had not committed any of these unlawful acts, becausesupplying was not administering for the first offence, and that the personal autonomy of the deceased to consume the heroin was a fullanswer to the other two offences. [43] The Law Lords stated that, “The criminal law generally assumes the existence of free will” (at para 14), except in casesinvolving young and/or legally vulnerable persons, or where there are situations of duress, necessity, deception and mistake.

They wrotethat (at para 14): [I]nformed adults of sound mind are treated as autonomous beings able to make their own decisions how they will act . . ..

Thus D is notto 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. [44] Thus, in Kennedy, the finding that the deceased voluntarily injected himself with heroin, knowing what it was, was afull answer to any contention that the appellant “caused” the noxious substance to be administered to or taken by the deceased. [45] Here, the accused argues that the trial judge should have applied the personal autonomy approach endorsed inKennedy. I agree with the Crown that Canadian jurisprudence on causation has developed differently.

The leading cases on causationare Smithers v The Queen, (SCC), [1978] 1 SCR 506; and R v Nette, 2001 SCC 78, [2001] 3 SCR 488. The leading caseon intervening acts is R v Maybin, 2012 SCC 24, [2012] 2 SCR 30. [46] The test for causation in manslaughter is whether an accused person’s actions were “a contributing cause of death,outside the de minimis range” (Smithers at p 519). This test has also been expressed as a “significant contributing cause” or “substantialcause” (Nette at para 72).

As explained in Nette, causation has two components—factual causation and legal causation. [47] Factual causation concerns “an inquiry about how the victim came to his or her death, in a medical, mechanical, orphysical sense, and with the contribution of the accused to that result” (Nette at para 44). Furthermore, “factual causation is not limitedto the direct and immediate cause, nor is it limited to the most significant cause” (Maybin at para 20).

In any given case, the trier of factwill have to make an assessment of the medical cause of death, and consider the contribution of the accused to that result, usually byasking whether the deceased would have died “but for” the actions of the accused (see Maybin at para 21). [48] Legal causation is “directed at the question of whether the accused person should be held criminally responsible for theconsequences that occurred” (Nette at para 45). It is based on “concepts of moral responsibility and is not a mechanical or mathematicalexercise” (at para 83).

As stated by Karakatsanis J in Maybin (at para 29): Any assessment of legal causation should maintain focus on whether the accused should be held legally responsible for theconsequences of his actions, or whether holding the accused responsible for the death would amount to punishing a moral innocent.

[49] Even though both factual and legal causation must be present, a distinct two-step inquiry is not required. The twoinquiries may be joined into one by asking whether the accused person’s actions significantly contributed to the victim’s death. SeeNette at para 46; and R v Sinclair (T), 2009 MBCA 71 at para 39, 240 ManR (2d) 135 (rev’d on another point, 2011 SCC 40, [2011] 3SCR 3). [50] Whether another event is an intervening act is part of the analysis as to whether legal causation has been established,and whether an accused person should be held legally accountable for the death (see Maybin at para 22).

As explained by Cromwell JA(as he then was) in R v Tower (TJ), 2008 NSCA 3, 261 NSR (2d) 135 (quoted in the majority judgment in Maybin at para 23): [T]he law recognizes that other causes may intervene to “break the chain of causation” between the accused’s acts and the death.

This isthe concept of an “intervening cause”, that some new event or events result in the accused’s actions not being a significant contributingcause of death (para. 25). [51] Due to the vast range of circumstances in which the issue of causation arises, there is no one test to determine whetheran intervening cause interrupts the chain of causation (see Maybin at para 25).

The determination as to whether an intervening act willabsolve an accused person of manslaughter will depend upon the factual context (see para 60). [52] In Maybin, Karakatsanis J considered the two approaches used by the British Columbia Court of Appeal in that Court’sdecision in Maybin (2010 BCCA 527, 295 BCAC 298): the reasonably foreseeable approach and the independent factor approach.

Sheconcluded that these approaches were analytical aids that may or may not be helpful in a given circumstance for determining whether anaccused person’s actions remained a significant contributing cause at the time of death. [53] The reasonably foreseeable approach looks at whether the risk of harm caused by the intervening actor was reasonablyforeseeable to the accused person when he committed the underlying unlawful act.

As Karakatsanis J explained (at para 30): An intervening act that is reasonably foreseeable will usually not break or rupture the chain of causation so as to relieve the offender oflegal responsibility for the unintended result. This approach posits that an accused who undertakes a dangerous act, and in so doingcontributes to a death, should bear the risk that other foreseeable acts may intervene and contribute to that death.

Because the issue iswhether the actions and consequences were reasonably foreseeable prospectively, at the time of the accused’s objectively dangerous andunlawful act, it accords with our notions of moral accountability. This approach addresses the question: Is it fair to attribute theresulting death to the initial actor? [54] To be objectively foreseeable, it is sufficient if the general nature of the intervening act and the risk of non-trivial harmare reasonably foreseeable at the time that the accused person commits the underlying unlawful act.

In other words, the precise detailsof the intervening act need not be foreseeable. The question to be asked is whether the intervening act and the resultant harm flowedreasonably from the conduct of the accused person. See Maybin at paras 34, 38. [55] The independent factor approach looks at whether the effects of the accused person’s actions are “effectively overtakenby the more immediate causal action of another party acting independently” (at para 46).

The question to be asked is whether theaccused person’s actions triggered or provoked a response from the intervening party, or whether the accused person’s actions merely setthe scene for other coincidental circumstances to intervene (see para 49). The focus is on the connection or the independence betweenthe actions of the accused person and the actions of the intervening actor, not on the fact that the intervening actor may be anindependent third party (see para 55).

If the intervening act is a direct response, or is directly linked to the actions of the accused, anddoes not by its nature overwhelm the original actions, then the accused person cannot be said to be morally innocent of the death (seepara 57).

The original actions of the accused must be subsisting, and not spent, at the time of the intervening act (see para 59). [56] R v Jordan (1991), (BC CA), 4 BCAC 121; and R v CW (2006), (ON CA), 209OAC 1, are two appellate court decisions in which the voluntary consumption of drugs or alcohol provided to the deceased by theaccused persons did not constitute intervening acts. Leave to appeal to the Supreme Court of Canada was dismissed in both cases, R vJordan, [1992] SCCA No 93 (QL); R v CW, [2006] SCCA No 409 (QL). These decisions were decided before Maybin.

Nonetheless, inmy view, they are consistent with the contextual approach articulated in Maybin. [57] In Jordan, the accused person plied the deceased with copious amounts of alcohol, and she died from acute alcoholpoisoning. The trial judge was satisfied that the evidence established that the alcohol was at least a contributing cause of death, outsidethe de minimis range, and convicted the accused of manslaughter by criminal negligence.

On appeal, it was argued that the trial judgefailed to consider whether the deceased’s voluntary consumption was an intervening cause which severed the chain of causation, whichstarted with the accused’s provision of the alcohol. Lambert JA, for the Court stated (at para 19): In my opinion even if all the alcohol consumed by [the deceased] was consumed without direct glass by glass persuasion and was in thatsense voluntary, that would not prevent the creation by the appellant of an environment in which [the deceased] was sure to drinkexcessively from being a continuing contributing cause of her death.

Particularly, the provision of alcohol in that closed environment, aswell as the provision of the alcohol in itself, remained acts which were done in wanton or reckless disregard for the safety of [the

deceased] and were continuing causes of death outside the de minimis range. [58] In CW, the Ontario Court of Appeal upheld a finding of manslaughter arising from the unlawful act of trafficking indrugs in circumstances where “the accused invited [the victim] to take dangerous drugs and facilitated her ingesting them in a form mostlethal” (at para 6). [59] The evidence established that the 41-year-old accused set out large quantities of drugs for the use of his party guests,and encouraged the deceased, a 13-year-old, to use them and showed her how to increase their potency.

Although the accused did not seethe deceased consume all the drugs she took, all of the drugs ingested came from the accused’s supply. In these circumstances, theOntario Court of Appeal was satisfied that the accused’s actions contributed substantially to the deceased’s death, and that the deceased’scontinued consumption of the drugs supplied by the accused, even if taken on her own, did not give rise to an intervening act.

The Courtwrote (at paras 6-7): The trial judge found that the appellant made the drugs available in large quantities to his guests, including [the deceased], and that hefacilitated, encouraged, welcomed and promoted their use; he showed [the deceased] and her friends how a more intoxicating effectcould be obtained by crushing the pills and removing the time-release coating, and when the girls said they were not feeling “high”, hesupplied them with more drugs with the added potency factor of peeling and crushing.

The trial judge specifically found that “theaccused invited [the deceased] to take dangerous drugs and facilitated her ingesting them in a form most lethal, thus placing her in aconfused and vulnerable state and then, whether she continued consumption on her own or with S.H., took no steps to shut her down.” He found that the appellant’s actions contributed substantially to [the deceased]’s death. There was ample evidence to support these findings and they fully support the finding of guilt on the charge of manslaughter.

The drugsingested by [the deceased] all came from the appellant’s supply - as the Crown notes, he had a virtual pharmacopoeia of drugs on hiskitchen counter - and were taken with his permission and, indeed, encouragement, even if he happened not to be present on someoccasions when the drugs were consumed. The evidence is that the appellant was present on numerous other occasions when [thedeceased] was consuming the drugs.

Accordingly, the trial judge’s finding of manslaughter arising from the unlawful act of traffickingin drugs was perfectly justified in the circumstances. [60] Also see the trial decisions in R v Worrall (2004) (ON SC), 189 CCC (3d) 79 (ON SC); and R vTremblay, 2013 BCSC 816 , in which the trial judges rejected the argument that the voluntary consumption by the deceasedbroke the chain of causation. To the contrary, see R v Jackson, 2014 ONCJ 386 , where the trial judge found Kennedy to bepersuasive. [61] To conclude, Kennedy is not consistent with the development of Canadian jurisprudence.

The key issue in determiningwhether the unlawful act in question is objectively dangerous is the risk of harm, and not, as concluded in Kennedy, whether the actualharm flowed immediately from the unlawful act. The Supreme Court of Canada has directed that the determination of causation is tofocus on the accused person’s moral responsibility, as opposed to the autonomy of the victim and the victim’s choices, as in Kennedy.

Furthermore, the House of Lord’s rejection of the reasonable foreseeability approach is contrary to Maybin, which accepted the use ofsuch an approach as an analytical aid when determining whether or not an intervening act has severed the chain of causation. [62] Whether a deceased’s voluntary consumption of drugs constitutes an intervening act will depend upon the facts andcircumstances found by the trial judge, and the trial judge’s assessment of those facts and circumstances in light of the legal principlesregarding causation.

In other words, voluntary consumption is simply one of many contextual considerations in the circumstances of anygiven case to determine whether or not the chain of causation has been broken. [63] Here, the trial judge’s reasons demonstrate that he understood the correct legal principles with respect to causation, andthat he considered both factual and legal causation in the context of the evidence and the issues raised.

He referred to the “but for” test,concluded on the medical evidence that the cause of W.H.’s death was a morphine overdose, and considered the accused’s contributionto her death by giving her the morphine pills in the context of the circumstances in this case, including W.H.’s age, her lack ofknowledge of the pills given to her and the fact that she never left the accused’s apartment. [64] The trial judge did not err in law when he rejected the accused’s argument that the voluntary consumption of morphinepills by W.H. had the legal effect of breaking the chain of causation.

Question 2 - Unreasonable Verdict [65] The accused asserts that the trial judge made the following palpable and overriding errors: 1. in finding the dosage of the morphine is stamped on the pills; 2. in finding that the orange morphine pills are 60 mg slow release when the toxicologist agreed under cross-examination that theycould be another dosage; 3. by not considering whether the chain of causation was broken by the voluntary consumption of the pills by W.H.; and 4. by misapprehending the evidence surrounding causation and relying on a scenario that Ms Chung indicated had only been known to

occur once or twice in scientific studies. [66] Assertions 1 and 2 need only brief comment. A.M.’s evidence was that the pills she received were orange and werestamped with 60 mg. Given this and Ms Chung’s evidence, there was evidence before the trial judge that entitled him to find that themorphine pills were stamped with 60 mg dosage, and that the orange morphine pills are 60 mg slow release. In making these findings, heconsidered the acknowledgment in cross-examination by Ms Chung that it was possible that the dosage of the pills was something else. Ms Chung’s report was dated May 14, 2008.

While her research should have focussed on the period of time around the date of death in2007, she testified that she had never known a manufacturer to change the colour of a drug at a specific dosage and type. Therefore, I seeno error as asserted by the accused. [67] Neither do I accept the accused’s third assertion that the trial judge did not consider whether the chain of causation wasbroken by the voluntary consumption of the pills. As explained earlier, he addressed the applicable legal principles and the accused’ssubmissions in this regard.

He considered the circumstances pertaining to the critical 32 hours that W.H. was in the accused’s apartment,including the fact that she took the pills herself. [68] Finally, the accused asserts that Ms Chung’s scenario 1 opinion was unreasonable, and should not have been relied uponby the trial judge. He argues that her opinion was based on assumptions that were not proved in evidence, unreliable studies andmathematical errors.

As a result, he says, the trial judge erred in finding that W.H. consumed at least 16 morphine pills on Saturdayevening and this error renders the verdict unreasonable. [69] Ms Chung’s evidence does raise some red flags. Her scenario 1 opinion seems to be at odds with her evidence that itwas the least likely of the three scenarios, it was “rare” and she “cannot give an exact number of how many morphine pills would havehad to have been ingested” because the outward and internal effects of morphine vary immensely among individuals.

Furthermore, thetwo studies upon which she relied were of minimal value, as they involved very small samples that impacted their scientific validity andhad not been replicated. [70] With respect to the accused’s argument that her opinion was based on assumptions, that is not problematic, in and ofitself. There is nothing wrong with an expert relying on hearsay evidence in coming to an opinion. See R v Abbey, (SCC), [1982] 2 SCR 24; and R v Lavallee, (SCC), [1990] 1 SCR 852.

The issue for the trial judge was whether theCrown proved directly or indirectly, that W.H. consumed morphine in an amount that could support Ms Chung’s opinion that W.H.ingested at least 16 - 60 mg morphine pills. For his finding, the trial judge specifically referred to A.M.’s evidence, which included thenumber of pills given to her and W.H., and the fact that W.H. seemed “high”, and Ms Chung’s evidence.

Given this, Ms Chung’sscenario 1 opinion is arguably consistent with that evidence. [71] Even if the trial judge erred in relying on Ms Chung’s opinion as asserted by the accused, such error would notconstitute a fatal flaw in the reasoning that underpins the conviction. In other words, the finding that W.H. consumed at least 16 pills onSaturday evening was not essential to the verdict. [72] This case is not about mathematics, as asserted by the accused. The trial judge did not convict the accused because hegave W.H. at least 16 morphine pills.

He convicted the accused because he gave her, in his words, a “dangerously high number of pills”(at para 58), “large quantities of high dosage morphine pills” (at para 67) and “several pills which constituted well beyond a lethal dose”(at para 72).

Whether the number of pills was the “maybe 10” pills, as stated by the accused, the “at least 16” as found by the trial judge(at para 34), the four given to each of A.M. and W.H. early Saturday evening, or some other number, the essential finding was that theaccused’s unlawful act of providing morphine pills to W.H. “contributed substantially to her death” as a result of a morphine overdose (atpara 67); and that the morphine pills given to her by the accused were at least a contributing cause of death outside of the de minimisrange (see para 68).

These findings are unassailable on the facts and the applicable law. Conclusion [73] The trial judge did not err in law when he refused to find that the taking of the morphine pills by W.H. broke the chainof causation. The accused asserts that the trial judge erred in finding that W.H. consumed at least 16 pills on Saturday evening. Thisfinding was not essential to the verdict. As a result, the accused has not demonstrated that the conviction is unreasonable.

Other Grounds of Appeal [74] Given this conclusion, and as noted earlier, I need not address the accused’s conviction for criminal negligence causedeath, or his application for leave to appeal sentence. However, I have two observations that I wish to note about the trial judge’sreasons for the conviction for criminal negligence cause death. [75] First, the trial judge appears to have relied on both

an act of commission and

an act of omission for the conviction. Theact of commission was the supplying of W.H. with large quantities of morphine pills. The act of omission was his failure to call formedical assistance for W.H. In regard to the act of omission, the trial judge did not address the element of duty.

See section 219(1)(b)of the Criminal Code, which establishes criminal negligence by “omitting to do anything that it is his duty to do” and section 219(2),which states that “For the purposes of this section, duty means a duty imposed by law.” Also see R v Tayfel (M), 2009 MBCA 124, 245ManR (2d) 300. [76] Second, the trial judge did not discuss, among other elements of the offence, the objective mens rea requirement forcriminal negligence offences, being “a marked and substantial departure from the norm” of a reasonable person in all of thecircumstances (R v JF, 2008 SCC 60 at para 68, [2008] 3 SCR 215).

One Final Comment [77] The trial took place in February 2013. The trial judge delivered his decision nearly 15 months later on May 7, 2014. Without knowing the background for this delay, I will simply note that such a delay is concerning.

Decision [ 78 ] I would dismiss the accused’s appeal from his conviction for unlawful act manslaughter. JA I agree: JA I agree: JA