PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v Fredericks, 2013 NSPC 11
Date: 20130221
Docket: 2428007, 2428012
Registry: Kentville
Between:
Her Majesty the Queen
v.
Kyle David James Fredericks
Judge: The Honourable Judge Alan T. Tufts
Heard: November 21, 2012; January 8, 9, 16, 30, 2013 in Kentville, Nova Scotia
Charge: s. 220 Criminal Code
s. 5(1) Controlled Drugs and Substances Act
Counsel: William Fergusson, Q.C. for the Provincial Crown
Bill (W.W.) Watts, for the Federal Crown
Chris Manning, for the defence
By the Court:
INTRODUCTION
[1] Kyle David Fredericks is charged under s.220 (b) of the Criminal Code and s. 5(1) of the Controlled Drugs and Substances Act (CDSA). It is alleged he caused the death of Joshua Graves by criminal negligence and further that he did traffic in a substance represented or held out to be hydromorphone.[1]
[2] The Provincial Crown alleges that the accused gave Joshua Graves Dilaudid and that caused or substantially contributed to the cause of Mr. Graves’s death. I discuss in more detail below what the Crown must establish regarding this allegation. The Federal Crown does not allege particularly that the accused gave or sold the accused Dilaudid, but rather gave or sold him a substance held out or represented to be Dilaudid.
[3] I will provide a brief factual context for these allegations, set out in more detail the elements of the offences charged, describe the particular factual and legal issues to be addressed, do a detailed review of the evidence including the testimony of the various witnesses, discuss the criminal burden of proof and the role of a trial judge, review the law relating to the issues at hand, make findings of fact, apply the law to those facts and then explain my conclusions.
BRIEF FACTUAL CONTEXT
[4] Joshua Graves and his friend Brittany Balcom attended a party at the home of Aaron Robichaud in Cambridge, Kings County, Nova Scotia on the night of March 18, 2011. They met beforehand at Ms. Balcom’s residence. Mr. Graves had a quart bottle of rum and consumed about a quarter of it before going to the party. They arrived at the party between 9:00 and 9:30 p.m. and left about 2 a.m.
[5] Mr. Graves had consumed more alcohol and possibly drugs – I will come back to this in more detail below – at the party. Mr. Graves was very intoxicated. When they arrived home, they retired to bed. They slept separately. When Ms. Balcom awoke early the next morning Mr. Graves appeared to her, at least, to be asleep. Later that day, at approximately 3 p.m. sadly and very tragically Mr. Graves was found deceased. It was later determined he died of “acute combined hydromorphone and ethanol intoxication” – he overdosed on alcohol and Dilaudid.
ELEMENTS OF OFFENCES CHARGED
Criminal Negligence – s. 220 of the Criminal Code
[6] The applicable portions of s. 219 and s. 220 of the Criminal Code provide as follows:
s. 219(1) Everyone is criminally negligent who in doing anything… shows a wanton or reckless disregard for the lives or safety of other persons.
s. 220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence.
[7] Criminal negligence also includes omitting to do anything that is one’s duty to do, but this is not alleged here.
[8] Identity or jurisdiction are not contested issues in this proceeding and both have been established.
[9] The Crown therefore must prove beyond a reasonable doubt the following:
1. That the accused’s act or conduct caused the death of Joshua Graves,
2. That the accused’s act or conduct showed a wanton or reckless disregard for the lives or safety of other persons.
[10] I will explain in more detail below what the law requires for each of these essential ingredients.
Trafficking – s. 5(1) of the Controlled Drugs and Substances Act
[11] The applicable provisions of s. 5(1) of the CDSA are as follows:
5(1) No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance.
[12] In this case the allegation is that the accused gave or sold Joshua Graves a substance held out or represented by him to be Dilaudid or hydromorphone.
[13] Again, identity or jurisdiction are not contested issues in this proceeding. The Crown does not need to prove that the substance given or sold was or was not hydromorphone.
[14] “Traffic” is defined in s. 2(1) of the CDSA. The applicable portion of that section provides as follows:
“traffic” means in respect of a substance included in any of Schedules I to IV
(a) to sell, administer, give, transfer, transport, send or deliver the substance,
(b) to sell an authorization to obtain the substance, or
(c) to offer to do anything mentioned in paragraph (a) or (b),
otherwise than under the authority of the Regulations.
[15] Here the Crown must prove beyond a reasonable doubt the following:
1. That the accused held out or represented that the subject substance was a controlled substance, in this case Dilaudid,
2. (a) That the accused trafficked in that substance - here the allegation is that he gave or sold the substance to Mr. Graves or,
(b) Alternatively, that the accused offered to sell or give the said substance – in this case to Mr. Graves – the Crown does not allege this here.
3. That the accused intended to sell or give (or alternatively to offer to sell or give) the said substance to Joshua Graves.
ISSUES
[16] The central issues in this case are as follows:
Re: Allegation of Criminal Negligence
1. Has the Crown proven that the accused gave Dilaudid to Mr. Graves?
2. If so, did the giving of the Dilaudid by the accused to Mr. Graves cause his death or was it a significant contributing cause of his death?
3. Has the Crown met the fault requirement necessary to be proven for this offence?
I will expand on these issues further below.
Re: s. 5(1) CDSA
1. Did the accused give or sell Mr. Graves a substance?
2. Did the accused hold out or represent that substance to be Dilaudid or hydromorphone?
DETAILED REVIEW OF THE TESTIMONY OF THE WITNESSES
[17] The Crown led the following witnesses:
1. Brittany Balcom;
2. Aaron Robichaud;
3. Joseph Fraser, and
4. Dr. Marnie Wood, the medical examiner.
No other people at the party were called by the Crown as witnesses.
[18] The Crown applied to introduce the statement the accused gave to the police, however, in an earlier ruling by this Court the Crown’s application was not granted because the Court concluded there was a reasonable doubt that the accused’s statement was given voluntarily in accordance with R. v. Oickle [2000] 2 S.C.R. 3 and other decisions.
[19] The defence chose to call no evidence.
[20] I will now review the testimony of each of the Crown witnesses.
BRITTANY BALCOM
[21] Brittany Balcom was a close friend of Joshua Graves and went to the party with him at Mr. Robichaud’s residence on the evening in question. They met at her home around 6 p.m. Mr. Graves had a quart bottle of rum and consumed approximately one-quarter of it before they left for the party around 9 p.m. She was drinking coolers.
[22] She explained that she had known Joshua Graves for a long time and described that he had some issues with prescription drugs previously and that he had moved out west, in part, to get away from that activity. He had just returned a few months before this particular evening. Ms. Balcom was a student at Acadia University but also worked with Mi’kmaq Services supervising visits between parents and children. She had taken courses in drug awareness and recognition.
[23] She testified she never saw Mr. Graves take any drugs at her home that evening, either before they left or after they returned from the party. She also said she never saw Mr. Graves take any drugs at the party, nor did he tell her he took any drugs, although she acknowledges that he would have been reluctant to disclose that to her because he knew she would be disappointed in him for doing that.
[24] While at the party she said most of the men were in the lower level of the residence and the women were on the second level. She said that there were a lot of people there – in excess of 50 individuals – and most were consuming alcohol and many smoking marihuana. She did not see any “drugs” other than marihuana. She said Mr. Graves took the quart bottle of rum with him and was drinking from it at the party.
[25] She testified she saw the accused at the party with his girlfriend. She thought he was there when they arrived, although she could not be one hundred percent sure of that. She never saw the accused using drugs, nor did she say she saw the accused with any drugs or money. She said that Mr. Graves became very intoxicated at the party and she recalled one incident around 11 p.m. when looking back she now thinks he must have been on drugs; however she never suspected anything until after they returned to her home. When she asked him directly whether he was taking drugs, he denied it.
[26] The couple left and returned home at approximately 2 a.m. She is not sure if the accused was still at the party when they left. When she got home Mr. Graves still had the quart bottle of rum with approximately one-quarter of it remaining. No more substances were consumed when they got home. They retired to bed – had sexual relations - and Ms. Balcom went to get a drink of water. When she returned Mr. Graves appeared to be sleeping and because he snored she slept elsewhere. She arose early the next morning because she had a prior commitment. She said Mr. Graves was asleep. Later that day, around 3 p.m., Mr. Graves was found deceased at Ms. Balcom’s home.
[27] Ms. Balcom did not describe any drug use nor did she say she saw any drugs being consumed by Mr. Graves, although she suspected drug use later in the evening, and looking back she now thinks he may have been high on drugs at the party. She did tell the police she thought Mr. Graves may have gotten the drugs “on the reserve”, although there is no basis disclosed for her belief in that regard.
[28] Ms. Balcom said that she was not intoxicated and would have noticed if any drugs were in her presence. She never saw any.
[29] Ms. Balcom presented as a credible and forthright witness. Her observations of Mr. Graves “sleeping” in the morning may have been an understandable assumption on her part. As the medical examiner explained, it could not be determined precisely at what time between 2 a.m. and 3 p.m. the next day Mr. Graves died.
AARON ROBICHAUD
[30] Aaron Robichaud testified that it was at his home where the party was held on the evening in question. It was a celebration for two women – one having a birthday and the other was going away. It appears that it was an open invitation and a large number of young people were present.
[31] Mr. Robichaud had given a statement to the police in December of 2011, but when confronted with that statement during his testimony he explained he had confused the nights and that anything he said about the accused in his statement happened on another occasion. In effect, he recanted his statement to the police.
[32] In an earlier ruling I admitted his statement (the “KGB” statement) to the police for the truth of its contents, principally because it was videotaped and because the trier of fact – in this case myself – would be in a posi
[33] I will not go into detail about the contents of the statement nor the circumstances surrounding the giving of the statement, as that was described in my earlier ruling.
[34] Having said that, it is clear the police were using well-established techniques to motivate Mr. Robichaud to tell them about the accused’s actions that night. Throughout the interview the officer suggested that Mr. Robichaud could be held responsible because he was the owner of the residence. At one point the police suggested Mr. Robichaud brought the drugs to the party that Mr. Graves ingested.
[35] Also Mr. Robichaud, at times, spoke about the accused in generalities – his reputation in the community – “no secret he was selling”. He said the accused sold drugs to Mr. Fraser. Mr. Fraser testified that this did not happen and that he bought his drugs from someone else. Mr. Robichaud did say the accused was counting money and selling capsules. Again, Mr. Fraser never saw that. Finally he said the accused sold drugs to “Cathy”, who was buying for Mr. Graves.
[36] While confessions which are the product of police interrogation techniques may be credible on the premise that generally one does not implicate oneself in a crime, this does not necessarily apply when such techniques are used to motivate someone to implicate another person. The law surrounding credibility assessment requires a trial judge to look at a witness’s motivation to fabricate and requires a trial judge to reconcile any inconsistencies in that witness’s testimony.
[37] In my opinion Mr. Robichaud’s testimony, including his KGB statement to the police, is very unreliable and is not credible for a number of reasons:
1. He spoke to the police in the context of being suspected as responsible for Mr. Graves’s death. This gives him a clear motivation to implicate another person other than himself.
2. Mr. Robichaud was intoxicated during the events in question – he was taking Dilaudid.
3. His assertion that the accused sold drugs to Mr. Fraser was contradicted by Mr. Fraser himself when Mr. Fraser testified he purchased his drugs from someone other than the accused. Mr. Fraser, as I found, was a credible witness. Mr. Robichaud was simply wrong in this regard. Furthermore, Mr. Robichaud’s assertion that the accused was running around with a pill crusher and counting money was contradicted by Mr. Fraser.
4. Mr. Robichaud testified he was on drugs himself during the police interview.
5. Mr. Robichaud spoke in generalities about the accused in his statement to the police, making it a strong possibility he was “assuming” certain conduct of the accused.
6. Mr. Robichaud recanted his earlier statement when he testified under oath in court.
[38] I reject Mr. Robichaud’s evidence, both in his statement to the police and his testimony in court. It certainly cannot be relied upon as evidence probative to prove any of the elements of the offences before the Court, other than the accused was present at the party, there was a large number of people at the party and that he did not realize that mixing Dilaudid and alcohol was dangerous. Furthermore, his testimony is otherwise not capable of supporting any reasonable inference that may be drawn from facts found in this proceeding. Finally, it cannot be used to support or corroborate other evidence.
[39] Other than the references I made above, I give no weight whatsoever to Mr. Robichaud’s testimony.
JOSEPH FRASER
[40] Joseph Fraser was at the party on the night in question. He testified that both Mr. Graves and the accused were there. He confirmed Mr. Graves was consuming rum from a quart bottle. He also confirmed that he and a male friend consumed a forty ounce bottle of rum between them.
[41] He also testified that he ingested Dilaudid – an 8 mg. pill which he had gotten from Bradley Waye. He said he did this about 11 p.m. He snorted it after crushing it between two credit cards. He agreed that he was quite drunk at the party, having consumed one half of a 40 oz. bottle of rum. He also confirmed that Mr. Graves had done drugs – Dilaudid – before he went out west, but he did not describe it as a “problem”. He said he had not seen any signs Mr. Graves was taking Dilaudid since he was back in Nova Scotia from out west, although he saw him only “every now and then”.
[42] Mr. Fraser testified he saw the accused hand Mr. Graves a “red crusher” – a device which crushes pills – but did not hear any conversation, if any occurred, surrounding that transaction. He could not say if the crusher had pills in it or not. He said this happened halfway through the night between the time he arrived around 9:30 p.m. and when he left between one and 2 a.m.
[43] He said Mr. Graves started to crush up a pill when Mr. Fraser told him to go to a different room so people would not see him. He was asked where the pill came from that was being crushed. He replied, “I didn’t know at that time”. He confirmed that he did not see anyone give the pill to Mr. Graves nor did he notice the color of the pill. He saw Mr. Graves go into the other room and then come out but could not say where the crusher went. He was not sure if Mr. Graves still had the pill or he had already crushed it.
[44] Mr. Fraser also testified about a conversation he had with the accused days later and after Mr. Graves’ funeral. He said that the accused was very upset about Mr. Graves’ death. He was unsure where or when the conversation took place. He said in cross-examination he could not “tell” the conversation “word for word”.
[45] When asked about the conversation with the accused Mr. Fraser said, in direct examination, “We just, we talked on the phone and he told me that he did give Josh the drugs but he did not, nobody ever thought that anything like this would ever happen”. In cross-examination he said, “We had a conversation in my vehicle outside of his girlfriend’s residence where he did tell me that he sold Josh the pill”.
[46] Mr. Fraser said that the accused said it was a 12 mg. Dilaudid pill. He said it was one pill. He did not describe any other specifics – particularly he never said the accused described any other details of what, if anything, was said during the exchange of the pill between the accused and Mr. Graves.
[47] Mr. Fraser said that he arrived at the party between 9:30 and ten o’clock and left between one and 2 a.m. He agreed in cross-examination to the following: that it was, “Fair to say, isn’t it, he [meaning Mr. Graves] had the pill before you [meaning Mr. Fraser] got there that night?”
[48] Mr. Fraser testified that Mr. Graves did not tell him where he got the pill. He did not see the accused with any pills. He did not see the accused counting money, walking around with a pill crusher or doing any kind of transactions.
[49] Mr. Fraser, in my opinion, was a credible witness. He was clearly attempting to convey his evidence in a straightforward and honest way. He was clearly affected by Mr. Graves’ death and emotional at times during his testimony. He was confused about where the conversation took place and whether it was over the phone or in person. However, he was confident that it occurred and I accept his testimony on that point. However, as he acknowledges, he is not able to recount “word for word” what was said. In that sense there may be some reliability issues relating to the precise language he used when describing the conversation. I refer particularly to the expressions: “the drugs” and “the pill” and the answer to the question where Mr. Graves got the pill he was crushing being, “I didn’t know at that time”. These all suggest that the accused told him he gave the pill to Mr. Graves which Mr. Graves crushed at the party and which caused his death. I will come back to this later.
DR. MARNIE WOOD, Medical Examiner
[50] Dr. Marnie Wood is a medical examiner for the Province of Nova Scotia and was qualified to give opinion evidence in that capacity, as well as forensic pathology.
[51] The report of the post-mortem examination which she prepared was admitted by consent, as well as the toxicology report which was prepared by NMS Labs. She was not examined on the lab report other than making reference to the blood analysis as it related to the alcohol and hydromorphone blood concentrations. She briefly referred to the fourth Reference comment on page 2 of that report when explaining the fatal hydromorphone concentration range. She did not refer to the remainder of that Reference comment.
[52] Dr. Wood did the autopsy on Mr. Graves. She noted the cause of death as “acute combined hydromorphone and ethanol intoxication – pulmonary edema”. In lay terms, Mr. Graves died from a combined overdose of alcohol and Dilaudid. Dr. Wood described that the human body has sensors which trigger it to breathe when the body requires oxygen. Dilaudid acts on the brain and makes it less sensitive to the triggers which cause one to breathe. Alcohol multiplies the effect of Dilaudid. The result is the brain fails to tell the body to breathe. Breathing stops or becomes very, very infrequent and the blood has little oxygen as a result. This causes irreversible brain damage and eventually death. The subject becomes unconscious and then dies. This appears to have been what happened with Mr. Graves.
[53] Dr. Wood testified that the alcohol found in Mr. Graves’ body was unlikely to cause the death by itself. The Crown had argued in submissions that Dr. Wood testified that Dilaudid itself was sufficient to cause death. This is not what Dr. Wood said. What she did say, when asked that question, is, in part, the following, “The hydromorphone by itself may have been sufficient to cause death”. She goes on in that response to explain how Dilaudid can affect breathing and lead to brain damage. She did not say the Dilaudid itself in this case caused Mr. Graves’s death. Having said that, it is clear that the Dilaudid contributed significantly to Mr. Graves’s death.
[54] Dr. Wood referred to the toxicology report. It was from that report that she described the fatal concentration range of hydromorphone being 20 ng/mL to 1200 ng/mL.
[55] Dr. Wood could not determine precisely when, between 2 a.m. and 3 p.m. the following day, Mr. Graves had died. She said that he likely would have become unconscious – infrequent breathing resulting in brain damage – but could not say when that was. While Mr. Graves was alive he would have continued to metabolize the drugs and alcohol even though he was unconscious and brain damaged. At the time of his death his blood alcohol concentration was 121 mg/dL – higher in the vitreous humor. The hydromorphone concentration was 11 nanograms per milliliter (ng/mL). She explained that the peak levels for both alcohol and hydromorphone could have been higher, but she could not say what that would have been. She said a fatal level of hydromorphone is between 20 ng/mL and 1200 ng/mL, although levels below those could also be fatal.
[56] Dr. Wood explained that some people can develop a tolerance to hydromorphone because if a lot of the substance is used the body produces more enzymes which break down the substance and lower its effect on the sensors which control breathing. Also, some people have more “receptors” as a result so they are able to tolerate more of the drug without the same reaction as someone not used to the drug.
[57] Finally, Dr. Wood explained that hydromorphone has a half-life between four and nine hours. After five half-lifes approximately 95 percent of the drug is gone from the body – in other words, after 20 – 45 hours.
[58] Dr. Wood could not say, based on the autopsy, how much hydromorphone Mr. Graves took and when he took it because of a variety of reasons:
1. She did not know his time of death;
2. She did not know his metabolic rate or tolerance for the drugs – how long he took to break down the drug – the half-life of hydromorphone varies.
3. She did not know whether he consumed all of the Dilaudid he took at once or over time.
[59] She was not qualified to speak about the effects or outward manifestations that particular doses of hydromorphone would have on an individual. She said that “clinical prescribing of medications” was “outside” of her expertise.
[60] Dr. Wood was never asked how long it takes for hydromorphone to have its effect on the brain. In other words, how long after one consumes the drug does it have the effect she described [however see Reference note 4 at page 2 of the NMS Lab Report]. Also she was not asked if how one consumes it would alter the effect of the drug or the timeliness of the drug’s effect.
CRIMINAL BURDEN OF PROOF
[61] The law requires that the Crown prove each and every essential element of the offences charged beyond a reasonable doubt. This does not require proof of the elements of the alleged offence to an absolute certainty, but the required proof must be closer to certainty than to probability. If the Crown only proves that the accused is probably guilty he must be acquitted.
[62] At the same time, any doubt of the accused’s guilt must be a reasonable one and cannot be based on speculation or sympathy. It cannot be a frivolous doubt. It must be a doubt based on the evidence or lack of evidence.
[63] In the case of the allegation of criminal negligence there is no direct evidence, for example, that the accused caused Mr. Graves’s death. The Crown allegation is based on the allegation that the accused gave Mr. Graves Dilaudid, that he took that Dilaudid and that Dilaudid caused his death, or was a significant contributing cause of his death. I must be convinced beyond a reasonable doubt that the accused’s action was a significant cause of Mr. Graves’s death. That proof must come from the facts, as I find them, and based on any reasonable inference that can be drawn from the facts as found. In this latter regard it must be the only reasonable inference which can be drawn before the accused can be found to have caused Mr. Graves’s death.
ROLE OF TRIAL JUDGE
[64] The duty of a trial judge is to assess the credibility of the witnesses who appear before the Court and to make findings of fact. This is based on accepted principles regarding the assessment of a witness’s credibility. Findings of fact are based on logic and human experience. Reasonable inferences can then be made based on those facts providing, as I described earlier, that the essential elements of the offence are the only reasonable inferences.
[65] A trial judge cannot fill in gaps that exist in the evidence or assume or presume facts which have not been established by the evidence or which cannot be reasonably inferred from the facts as found. “Believing” what happened and proving an allegation beyond a reasonable doubt are quite distinct. It may be in the minds of many that what happened in this case is well-known, but it is proof of what is alleged based on the evidence and the facts found which is required. A trial judge must start with the presumption of innocence and move forward searching for proof based on that evidence, using logic and human experience, to see if the allegation has been proven beyond a reasonable doubt. It is a legal analysis. It cannot be based on sympathy or the desire only to address a senseless tragedy.
THE LAW
[66] There are two legal principles which I am required to reference – causation and the fault requirement for criminal negligence. There is no dispute regarding the causation issue. The fault requirement is more complex.
[67] R. v. Nette [2001] 3 S.C.R. 488 sets out the law on the proof of causation. It is sufficient that the Crown prove beyond a reasonable doubt that the accused’s action – in this case giving or selling Dilaudid to Mr. Graves – was a significant contributing cause of Mr. Graves’s death. Significant here means not insignificant or a trivial contributing cause. In other words, the Crown does not have to prove that the accused’s action was the only cause of Mr. Graves’s death, but a contributing cause, albeit more than an insignificant one.
[68] The jurisprudence is divided about whether the mens rea or fault requirement for criminal negligence is an objective or subjective one.
[69] Justice McLachlin (as she was then) in R. v. Creighton [1993] 3 S.C.R. 3 described the objective mens rea at para. 111:
Objective mens rea, on the other hand, is not concerned with what the accused intended or knew. Rather the mental fault lies in failure to direct the mind to a risk which the reasonable person would have appreciated. Objective mens rea is not concerned with what was actually the accused’s mind, but with what should have been there, had the accused proceeded reasonably.
[70] It is proof of conduct which reveals a marked and significant departure from the standard which could be expected of a reasonable prudent person in the circumstances – see R. v. Tutton [1989] 1 S.C.R. 1392. It is not about what the accused actually had in his mind but his failure to direct his mind to a risk a reasonable person would appreciate. See R. v. Canhoto 140 C.C.C. (3d) 321 (ONCA).
[71] The subjective test would require the Crown to prove that the accused was aware of the risk or willfully blind to that risk and chose to ignore the risk or close his mind to it.
[72] Finally, the Crown does not need to prove that in a case of criminal negligence causing death that there is a risk of death present. A risk of bodily harm is sufficient.
FINDINGS OF FACT
[73] Based on the evidence and testimony I describe earlier, I will now make specific findings of fact, draw inferences to conclude other facts and point out where a lack of evidence prevents me from determining whether other facts can be determined.
[74] Accordingly, I find the following:
1. Joshua Graves drank three-quarters of a quart of rum from approximately 6 p.m. until 2 a.m. on the evening in question. He did not consume any rum after that time. He drank from the quart bottle of rum at the party and he was very intoxicated at least by 11 p.m.
2. Mr. Graves took Dilaudid or hydromorphone between approximately 9 p.m. and 2 a.m. at the party. While there was no expert evidence on how long it takes for the effects of Dilaudid to manifest itself after ingestion [see note 4 on page 2 of toxicology report and my comments below], Brittany Balcom seems to suspect drug use after the couple returned home and looking back she felt Mr. Graves was high on drugs around 11 p.m. that evening. While she is not an expert her observations are consistent with other evidence. The autopsy clearly shows levels of Dilaudid in Mr. Graves’s blood and Mr. Fraser saw Mr. Graves crushing a pill midway through the evening.
3. There were approximately 50 people at the party at the home of Aaron Robichaud on two levels in the home. There was no evidence of the layout or size of the home or the proximity any of these people had with each other.
4. The accused was at the party at a time when Mr. Graves was there. It is not clear precisely when the accused arrived or when he left.
5. The accused gave Mr. Graves a pill crusher some time midway through the evening. It is not possible to say precisely when that occurred, given that Mr. Fraser was consuming significant amounts of alcohol and had also taken Dilaudid. This may have affected Mr. Fraser’s recall. However, the precise timing of this is not critical.
6. Mr. Graves crushed a pill after receiving the pill crusher from the accused. The pill was not in the crusher when Mr. Graves received it from the accused. Mr. Fraser did not know where the pill came from “at that time”. This is clear from the following excerpt from the transcript:
MR. FERGUSSON: Did you see anybody else with a crusher that night?
A. Yes.
Q. Who was that?
A. Josh had one.
Q. And when was that in relation to sort of when you got there and when you left – where in between are we?
A. Probably halfway through the night.
Q. Okay and what, what sort of crusher did he have, what colour?
A. It was a red crusher.
Q. Okay, do you know where he got it from?
A. Yes.
Q. And how do you know that?
A. Um, I was seen it handed to him.
Q. And who handed it to him?
A. Kyle.
Q. Kyle Fredericks?
A. Yes.
Q. Okay, did you hear any conversation at that point between Joshua Graves and Kyle Fredericks?
A. No.
Q. Okay, alright – do you know if the crusher that was handed to him had any crushed Dilaudid in it?
A. No I do not know that.
Q. Okay, so what did Mr. Graves do with the crusher once he got it?
A. He proceeded to crush up a pill and at that point in time I told him no, this wasn’t the right spot, people don’t need to see you be doing this and I directed him into a different room.
Q. Alright, so when you say he crushed up a pill where did the pill seem to come from?
A. I didn’t know at that time.
Q. Okay, so you, you didn’t see anybody give him the pill?
A. No.
7. The accused gave Joshua Graves what the accused believed was a 12 mg. Dilaudid pill. The accused told Mr. Fraser this and there is nothing to rebut this admission.
8. Joshua Graves died of the combined effect of alcohol and Dilaudid intoxication. I find the ingestion by Mr. Graves of the Dilaudid was a significant cause of his death. I have concluded this because at the time of his death his Dilaudid blood level was 11 ng. of Dilaudid per milliliter of blood – close to the fatal range described by the medical examiner. The peak level was likely higher before that. Alcohol multiplies the drug effect and the alcohol level itself, even at a possibly higher peak level, was not in the fatal range.
9. I find as a fact that Dilaudid is hydromorphone. Dr. Wood, the medical examiner, confirms this.
[75] The following, however, has not been established:
1. Did Mr. Graves ingest the 12 mg. pill the accused gave him and if so, when? Was that pill in fact Dilaudid? There was no evidence that Mr. Graves’s clothing was seized and searched or whether the scene where he was found deceased was searched to determine if he had any Dilaudid still on his person. Had a police search confirmed he had none, it may be easier to infer that he must have taken any drugs that he was given, although it is not the only inference that could be drawn from that fact. Because there was no such evidence it is not necessary for me to make that kind of analysis. There is no direct evidence that Mr. Graves ingested the pill the accused gave him or that the pill was in fact Dilaudid. This, of course, is one of the issues at the heart of this case and I will return to it later.
2. When did the accused give Mr. Graves the pill? No credible witness testified they saw the accused give Mr. Graves the 12 mg. Dilaudid. Mr. Robichaud’s testimony is not reliable at all and cannot be used to either support or confirm other testimony, nor can it be used to draw any inferences. I will make further references below on this issue.
3. Precisely when Joshua Graves died or when he became unconscious or brain damaged or for how long as the medical examiner described, other than it occurred between 2 a.m. and 3 p.m. the following day. It is unlikely he got out of bed after 2 a.m. given the reference in the autopsy report to the condom. Brittany Balcom thought he was asleep in the morning but she may have just assumed this – she had no reason to think otherwise. However, the medical examiner could not determine the time of death. The time of death simply could not be determined.
4. Did Mr. Graves take any Dilaudid from another source? There is no evidence he did, however, there was at least one other person who sold Dilaudid at the party – Mr. Waye – who sold drugs to Mr. Fraser. It could not be determined from the medical report whether the Dilaudid level at the time of death was caused or was even consistent with the ingestion of one 12 mg. Dilaudid pill. There was no expert testimony which would allow me to determine what toxicity levels could be produced by a 12 mg. Dilaudid pill [see my commentary regarding note 4 on page 2 of the toxicology report later in these reasons]. There was no evidence which indicated what Mr. Graves’s activity was during that evening which would allow me to infer that he could not possibly have taken other drugs. Clearly Brittany Balcom could not provide that because she did not see the drugs that he did take.
5. What, if anything, was said during the exchange between Mr. Graves and the accused when the accused gave him the pill? There were approximately 50 people at the party. There was no description whatsoever of how the pill was given or sold by the accused to Mr. Graves. I mention “gave” or “sold” because Mr. Fraser referred to both in his testimony. No words were described as being said or spoken by either Mr. Graves or the accused. No mannerisms, hand gestures or other conduct was described. There was simply no evidence describing the context or the circumstances regarding this transaction. Even Mr. Fraser, who was told by the accused he gave Mr. Graves the pill, did not describe the context or any circumstances in which the giving or selling took place. Again, any testimony Mr. Robichaud may have given which related to this subject is simply not credible or useful for any purpose.
6. Whether Mr. Graves ingested the pill which Mr. Fraser described him wanting to crush – all or any portion of it? Mr. Fraser directed Mr. Graves into a room away from others. Mr. Graves went in there, presumably with the pill and the crusher. It is probable he ingested the pill there, but Mr. Fraser did not see the crusher or the pill when Mr. Graves came out of the room. He could not be sure – “I am not sure” – if Mr. Graves had already crushed it at that point.
7. There was no objective or independent evidence confirming or not whether hydromorphone is available in 12 mg pills or capsules. Are there 12 mg pills? Are they in capsule form? There was no evidence on this issue at all other than Mr. Fraser said it was a 12 mg pill which the accused told him was given to Mr. Graves.
[76] It can be inferred, however, that the accused gave Mr. Graves a pill in close proximity and time to the party on the evening in question. Whether this was before 6 p.m. when Mr. Graves went to Brittany Balcom’s residence or at the party. I say this because the whole context of the conversation the accused had with Mr. Fraser only makes sense if the pill was given to Mr. Graves at the party or in close proximity in time to that event.
ANALYSIS
Criminal Negligence
[77] I explained the elements of the offence of criminal negligence above. There are two central issues – causation and mens rea, or the fault requirement. I will deal first with the causation issue.
[78] Did the accused cause Mr. Graves’s death? Has the Crown proven that beyond a reasonable doubt? I will proceed on the basis that the Crown has established that the accused gave Mr. Graves a 12 mg. Dilaudid pill; although I acknowledge that the Federal Crown does not allege this. In particular, in its brief, the Federal Crown says, “the Federal Crown is not alleging that the accused trafficked in hydromorphone. We are of the view that in order to prove the accused trafficked in hydromorphone, the substance itself must be proven. In this case the substance trafficked was not seized and available for analysis”. Also, the other circumstantial evidence does not establish that either. Because the accused said he gave Mr. Graves Dilaudid and Mr. Graves had Dilaudid in his blood does not prove it was in fact Dilaudid which was in the pill the accused gave him. But I need not determine the case on that basis.
[79] The Crown argues that it is simply common sense. It argues that the accused gave Mr. Graves Dilaudid, Mr. Graves died of an overdose of Dilaudid and alcohol – Dilaudid being a significant contributing factor – ergo the accused must have caused Mr. Graves’s death.
[80] However, there are a number of questions which arise when attempting to link the accused’s action to Mr. Graves’s death. They are as follows:
1. Did Mr. Graves take or ingest the Dilaudid (if it was Dilaudid) which the accused gave him?
2. Did Mr. Graves take all of the substance or just a portion of it?
3. Did Mr. Graves take Dilaudid from another source that evening?
4. What effect did a 12 mg. Dilaudid pill or any portion of it, have on Mr. Graves – did it, if ingested, contribute significantly to Mr. Graves’s death?
[81] Let me deal with each of these questions. I will begin with the first two. There is no credible witness who saw the accused give the Dilaudid to Mr. Graves. Mr. Fraser felt it was “fair to say” that Mr. Graves had the pill he saw him with midway through the evening before Mr. Fraser arrived at 9:30. Was this the pill the accused gave him? It is not clear. The evidence does not disclose when Mr. Graves got the pill he crushed that Mr. Fraser saw him with and from whom. The evidence does not make it clear that the pill Mr. Fraser saw Mr. Graves crushing was the one given to him by the accused.
[82] In short, there is no evidence that Mr. Graves ingested the Dilaudid the accused gave him, if it can be established he gave him Dilaudid.
[83] Similarly, it is not clear from the evidence whether Mr. Graves ingested all of the pill he was seen crushing by Mr. Fraser. If this was the one given to him by the accused it cannot be concluded he ingested all of it or a portion of it because no one witnessed what if anything he did with the crushed pill. It is probable that he ingested it, but it is unknown whether he ingested all of it.
[84] Finally, on this question, in my opinion, it is not enough that the accused thought he gave the Dilaudid which caused or significantly contributed to the cause of Mr. Graves’s death. The import of what the accused told Mr. Fraser suggests that, and clearly Mr. Fraser was left with that impression. It explains the references I alluded to earlier “I did not know at that time”, “…he did give Josh the drugs…” and in cross-examination “…he did tell me that he sold Josh the pill”. There are a couple of difficulties with this reasoning in any event. First, it is Mr. Fraser’s words that suggest the accused gave Mr. Graves “the” drugs. Mr. Fraser was never asked precisely what words the accused used. It is not possible to rely on Mr. Fraser’s opinion. Secondly, Mr. Fraser was recalling a conversation during his testimony that he had almost two years ago. He gave a statement to the police with respect to this but it is not clear when that was given. One must be careful not to read too much into the emphasis on “the” pill as opposed to “a” pill. Mr. Fraser was never asked whether the accused explained to him why the accused felt the pill he had given Mr. Graves may have caused his death. Finally, there was no objective and qualified evidence about the dosages and types of pills or capsules in which hydromorphone comes which would confirm that is was a pill as opposed to a capsule or 12mg dosage as opposed to another dosage.
[85] What the accused told Mr. Fraser did not, in my opinion, establish that the Dilaudid which the accused gave Mr. Graves caused his death.
[86] Did Mr. Graves take Dilaudid from other sources? There is no evidence he took any Dilaudid beyond, possibly, the pill he was seen by Mr. Fraser to be crushing. However, there is no evidence that he did not. No witness was able to account for Mr. Graves’s movements that evening. At least one other person was selling drugs that evening and the evidence from the medical examiner does not allow me to conclude what doses of Dilaudid Mr. Graves took and when. It is simply unknown whether Mr. Graves took other doses of Dilaudid.
[87] Finally, there is simply no evidence which indicates to me what effect the 12 mg. dosage of Dilaudid or other smaller doses of Dilaudid for that matter would have on Mr. Graves’ blood Dilaudid concentration. When asked about different Dilaudid dosages Dr. Wood said as follows:
Q. Okay, and, and does that serve any purpose, the fact that different dosages, like, does, does the dosage of the pills matter, is what I’m trying to get at?
A. Matter to?
Q. How you take them or what you take?
A. So, the clinical prescribing of medications is not what I do anymore, so it would be um, outside of ah, my expertise comment on the clinical decision-making but um, different doses are prescribed to different people for different conditions to allow for different therapeutic concentration to address their needs.
[88] When asked whether by looking at the Dilaudid in Mr. Graves’s blood at the time of death one could determine what dosages of Dilaudid he took, Dr. Wood said:
Q. Okay, alright – what was remaining in the system on this particular individual you have no way of knowing what the dosage was that he took?
A. Based on concentrations measured in specimens collected at autopsy there’s no way to determine what dose the person took to achieve that concentration – there are many variables that affect the concentration that I see at the time of autopsy and those include how much medication was taken, over what period of time it was taken, the individual person’s rate of metabolising that medication – so two different people may metabolize differently, um, in addition if they were taking other drugs or alcohol.
[89] There is simply no way to determine what amount of Dilaudid it took for Mr. Graves to ingest to cause the reading of 11 ng/ml. Furthermore it is not possible to determine, based on Dr. Wood’s testimony, what affect a 12 mg. Dilaudid dosage, or any other dosage, would have on Mr. Graves blood Dilaudid concentration.
[90] I would however point out that the report prepared by NMS Labs at pg. 2 under Reference Comments #4 describes average peak plasma concentrations from a single 4 mg. dosage. This was appended to Dr. Woods report by consent of all counsel. However, Dr. Wood only referred to that note when asked about the fatal range of Dilaudid blood concentrations. In any event this note was not explained nor extrapolated either forward or backwards by Dr. Wood, if she was qualified to do so, to determine what dose or dosage could produce a particular blood Dilaudid concentration at death or what concentration could be produced by a particular dose of Dilaudid. In any event, the Crown never referenced any other witness to that note during the trial, never referenced it during submissions and never asked me to rely on it in any way in its’ argument. The conclusion from this issue is that it cannot be determined what dosages of Dilaudid caused Mr. Graves’s death and whether the blood Dilaudid concentration was consistent with a 12 mg. dosage or some smaller dosage, or a larger one for that matter and whether that dosage was taken all at once or at various times.
[91] I agree that it is probable Mr. Graves was given a 12 mg. Dilaudid pill by the accused and ingested some or even all of that pill. It may be likely he never took any other Dilaudid. It is possible that the Dilaudid given or sold by the accused caused Mr. Graves’s death. However, the unresolved issues I raised above and the gaps or absences in the evidence on these issues leave me with a doubt as to whether the substance given by the accused to Mr. Graves was ingested by him and whether they caused his death. This, in my opinion, is not speculation. The Crown has the burden to prove causation; that is, that the accused’s action was a significant contributing cause to Mr. Graves’s death, beyond a reasonable doubt. In my opinion it has not done that.
FAULT REQUIREMENT
[92] I described the mens rea, or fault requirement, above. It is not necessary for me to make any final determination on this issue, given my conclusions with respect to the causation issue. However, having said this I will point out the following:
1. Dr. Wood was unable to testify about approximate doses of Dilaudid, although some information in that regard was in the toxicology report by NMS Labs, see note 4 page 2 – a normal adult oral dosage is 2 mg. every 4-6 hours.
2. There was no evidence describing the circumstances of how the 12 mg. pill was given or sold to Mr. Graves. Was it apparent from these circumstances that Mr. Graves would ingest the 12 mg. pill or any portion of it? Was it apparent that Mr. Graves was consuming alcohol, or likely to consume alcohol?
[93] Having said this, if a normal adult dosage could have been established in the evidence, in my opinion, to give an individual at a party, where that individual is likely to be consuming, even a portion of a 12 mg. pill of Dilaudid would be a marked and significant departure from what a reasonable person would do in the circumstances. It is not a reasonable person who gives or sells prescription street drugs but a reasonable and prudent person at a party or social event.
[94] In these circumstances it would be apparent that a risk of harm would be present and by giving or selling a drug in those circumstances it would amount to ignoring or being willfully blind to such a risk.
[95] However, because of my conclusions regarding the causation issue, it is not necessary for me to make any final conclusions on this issue or determine if any reasonable inferences can be drawn from the facts that the circumstances were present which would allow me to conclude that the accused’s conduct in this case was a marked and significant departure from what a reasonable and prudent person in the circumstances would do.
CONCLUSIONS ON CRIMINAL NEGLIGENCE
[96] For the reasons I explained earlier, I have a reasonable doubt that the Crown has proven that the accused’s giving of a substance caused Mr. Graves’s death. Even if that substance was in fact Dilaudid there are too many gaps in the evidence to prove beyond a reasonable doubt that that substance caused Mr. Graves’s death. It has not been established beyond a reasonable doubt that the accused in fact gave Mr. Graves hydromorphone in any event. Therefore it is not necessary for me to decide the mens rea or fault requirement issue.
[97] The accused is acquitted of the charge of criminal negligence under s. 220 of the Criminal Code.
TRAFFICKING BY HOLDING OUT, S. 5(1) OF THE CDSA
[98] I described the elements of this offence above. The Crown does not need to prove that the substance was or was not hydromorphone. The actus reus of the offence, in this case, is the selling or giving of something and representing it to be or holding it out to be hydromorphone. The mens rea of the offence is the intention to do so – see R. v. M.F. [2000] O.J. No. 2132 (CA) at para. 10.
[99] The critical issue is what, if anything, the accused held out when he gave Mr. Graves the substance. It is clear the accused gave him a substance. He admitted to Mr. Fraser that he did so. The Crown agrees it must prove that the accused did hold out or represent something. I agree with the Crown that the holding out or representation can be by words or action and may be inferred from the context or circumstances surrounding the giving or selling.
[100] The Crown points to the testimony of Mr. Robichaud and the statement he gave to the police. The Crown argues that Mr. Robichaud, in his KGB statement, described the accused selling hydromorphone and coupled with the accused’s admission to Mr. Fraser the only reasonable inference would be that the accused held out to Mr. Graves that he was giving him hydromorphone.
[101] The Crown acknowledges that credibility and reliability issues are associated with Mr. Robichaud’s statement. It argues therefore, alternatively, that if Mr. Robichaud recanted his statement to the police, he did testify the accused sold hydromorphone on other occasions at his home. Mr. Robichaud said he was confused and had the nights mixed up.
[102] There is no direct evidence at all of what the context or circumstances were when the accused gave Mr. Graves the impugned substance. No words were described, no description was given as to what either man was doing nor any evidence which would indicate what, if anything, the accused at the time held out or represented to Mr. Graves or to anyone else for that matter.
[103] Mr. Robichaud’s testimony is not credible or reliable for the reasons I described above. Even if Mr. Robichaud’s description of what the accused had done on other occasions – i.e., selling hydromorphone, was admissible, it does not prove the accused held out or represented to Mr. Graves on that day that the substance he gave him or sold him was hydromorphone.
[104] The Crown points to the testimony of Mr. Fraser. Mr. Fraser saw the accused give Mr. Graves a pill crusher, however, it is clear from his testimony that Mr. Graves already had the pill he intended to crush and Mr. Fraser could not say who gave Mr. Graves that pill. There is no evidence the giving of the pill by the accused was contemporaneous with the giving of the pill crusher. This testimony does not establish that the accused held out or represented that any substance he had given to Mr. Graves was hydromorphone.
[105] Finally, the accused told Mr. Fraser that he gave or sold Mr. Graves a 12 mg. Dilaudid pill. Mr. Fraser was never asked the precise words the accused used when describing this conversation. There is no evidence that the accused described to Mr. Fraser how and what circumstances were present when the giving or selling of the substance took place. Mr. Fraser was never asked that. It is clear Mr. Fraser was of the opinion that the accused told him that he [the accused] had given the pill that contributed to Mr. Graves’s death – “…he did give Josh the drugs…” however it is not clear whether the accused conveyed that opinion or Mr. Fraser concluded that himself because the words the accused used during the conversation were never described. In any event, whether this was Mr. Fraser’s opinion or the accused’s opinion conveyed to Mr. Fraser, it does not, by itself or combined with any other part of the evidence, indicate that the accused gave Mr. Graves a substance and he “held it out” or “represented it” to be hydromorphone.
[106] There is simply no evidence that proves beyond a reasonable doubt that the accused held out or represented the substance he gave Mr. Graves to be hydromorphone.
[107] The accused is therefore acquitted of the charge under s. 5(1) of the CDSA.
J.
APPENDIX A
ORAL SUMMARY
This case arose out of a very sad and senseless tragedy – the death of a healthy young man in our community. It is clear his death has had a profound effect on those who knew him – two of the witnesses who testified in this trial were clearly affected. Undoubtedly anyone who lost a son or daughter, brother or sister, grandchild, niece or nephew, neighbour or friend, would be affected by such a sad and tragic event.
However, my duty here is to determine whether the essential elements of certain charged offences have been proven by the Crown beyond a reasonable doubt. I must determine this by applying the law in a dispassionate and impartial manner.
I have provided detailed reasons for the conclusions that I have reached in this matter. I will not read them here today. Copies are available to those interested in this proceeding. This decision will be posted to the Nova Scotia Courts website later today or tomorrow.
I will simply summarize, very briefly, my conclusions. I will begin with the s. 5(1) CDSA charge.
The Federal Crown does not allege that the accused sold or gave Mr. Graves hydromorphone. The Federal Crown said in its submission in answer to a question raised by the Court,
The Federal Crown is not alleging that the Accused trafficked in hydromorphone. We are of the view that in order to prove that the Accused trafficked in hydromorphone, the substance itself must be proven. In this case, the substance trafficked was not seized and available for analysis.
The Crown alleges that the accused gave or sold Mr. Graves a substance which the accused held out or represented to be Dilaudid. It relies on the testimony of Mr. Robichaud and Mr. Fraser. For reasons which I will explain in my written decision, Mr. Robichaud is not a credible or reliable witness. His testimony cannot be relied upon to be probative of any fact or used to support any inference. There was no direct evidence of what the accused said or did or any description of the circumstances surrounding the giving or selling of the substance which the accused gave to Mr. Graves. It is clear that the accused gave Mr. Graves something. He told Mr. Fraser it was Dilaudid, however, neither Mr. Fraser’s testimony of what he saw at the party nor what the accused told him proves that the accused actually held out or represented that to Mr. Graves – either by words or actions.
The Crown has not proven beyond a reasonable doubt that the accused held out or represented to Mr. Graves that the substance the accused gave him was hydromorphone. The accused is acquitted of the charge under s. 5(1) of the CDSA.
Regarding the allegation of criminal negligence, the Crown identified causation as the critical issue. I agree with that assessment.
It is not possible to prove beyond a reasonable doubt the substance given to Mr. Graves by the accused was hydromorphone. However, beyond this, even if it could be established that the accused gave Mr. Graves Dilaudid, a number of other issues arise when trying to prove that any substance which the accused gave Mr. Graves substantially contributed to Mr. Graves’s death. The Crown argues that it is common sense. With respect, this does not establish proof beyond a reasonable doubt. In particular, as I described in my reasons for this decision, it cannot be proven that the substance that the accused gave Mr. Graves was taken or ingested by him in whole or in part. It cannot be determined what effect any particular dosage would have on Mr. Graves, and in particular whether it was a contributing or significant contributing cause of his death. The medical examiner could not determine what dosages produce the Dilaudid blood levels Mr. Graves had at the time of his death. The Crown has not shown that Mr. Graves may have taken doses of Dilaudid from other sources. All of these issues make it impossible for me to conclude beyond a reasonable doubt the accused caused or substantially contributed to the cause of Mr. Graves’s death.
It is not necessary for me therefore to determine whether the mens rea or fault requirement has been proven by the Crown beyond a reasonable doubt.
In the end, as I explain in my reasons, what one may believe happened in a particular event and what has been proven beyond a reasonable doubt are quite distinct. In this case proof to the criminal standard has not been established.
The accused is therefore acquitted of the charge of criminal negligence under s. 220 of the Criminal Code.