R v Oake, 2020 NWTSC 17 S-1-CR-2018-000005
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
-and-
DARCY OAKE
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Transcript of the Reasons for Decision of the Honourable Justice S. H. Smallwood, sitting in Yellowknife, in the Northwest Territories, on the 11th day of March, 2020.
________________________________________________________
APPEARANCES:
D. Praught: Counsel for the Crown
P. Harte: Counsel for the Defence
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Charges under s. 6(1), 5(1), 5(2) Controlled Drug and Substances Act,
and s. 221 of the Criminal Code
I N D E X
PAGE
DECISION: GUILTY ON COUNTS 1, 2, 3 AND 4 3
THE COURT: On November 25, 2016, Darcy Oake overdosed at his father’s home in Yellowknife for the second time in three days. When paramedics and the RCMP responded, the RCMP were given permission by his father to search his bedroom and the garage. In Darcy Oake’s bedroom, the police found a bag of furanylfentanyl in his dresser. In the garage, the police found an envelope addressed to Darcy Oake, with a label stating “Hong Kong” on it.
Darcy Oake overdosed on furanylfentanyl that he ordered on the internet. The furanylfentanyl was shipped from Hong Kong and sent to Darcy Oake’s father’s mailbox. Shortly after he received the furanylfentanyl on November 23, 2016, Darcy Oake took some. He then collapsed while walking his dog.
Once he was released from the hospital later that day, Darcy Oake continued to take the furanylfentanyl and gave some to Courtney Janes. Courtney Janes snorted the furanylfentanyl in Darcy Oake’s garage before going home. Once she got home, she went in the kitchen for a moment and then sat on the couch. There she slumped over and was unconscious until the next evening.
When Courtney Janes regained consciousness, she could not walk without assistance. She was taken to the hospital that evening, where she was diagnosed and hospitalized for Rhabdomyolysis, a breakdown of muscles resulting from a long period of immobility. Courtney Janes suffered the effects of Rhabdomyolysis for several months afterwards.
Darcy Oake was charged with four counts: (1) importing furanylfentanyl into Canada; (2) trafficking in furanylfentanyl; (3) possession of furanylfentanyl, for the purpose of trafficking; and (4) criminal negligence causing bodily harm by providing furanylfentanyl to Courtney Janes.
The trial was held before me from August 19 to 30, 2019, December 6 and 16, 2019. At the outset of the trial, Darcy Oake entered a guilty plea to trafficking in furanylfentanyl and plead not guilty to the other offences.
There are a number of things which are not in issue and there were a number of admissions, including that Darcy Oake ordered the furanylfentanyl off of the internet; that the furanylfentanyl came from Hong Kong; that Darcy Oake gave furanylfentanyl to Courtney Janes; that Courtney Janes suffered injuries which equate to bodily harm; and that Darcy Oake was in possession of the furanylfentanyl.
What is an issue is whether Darcy Oake knew that the furanylfentanyl was coming from outside Canada; whether the furanylfentanyl caused the injuries to Courtney Janes; and whether Darcy Oake was in possession of the furanylfentanyl for the purpose of trafficking.
The Crown’s position is that the evidence establishes beyond a reasonable doubt that Darcy Oake purchased furanylfentanyl knowing that it was coming from outside of Canada; that he intended to traffic the furanylfentanyl; and that the furanylfentanyl was a significant contributing cause of Courtney Janes’ bodily harm.
The Crown argues that Darcy Oake should be found guilty of importing furanylfentanyl into Canada; possession of furanylfentanyl for the purpose of trafficking; and criminal negligence causing bodily harm.
The Defence position is that there is no evidence that Darcy Oake knew that the furanylfentanyl he was ordering was coming from China or Hong Kong, and that he thought it was coming from Canada because the website was in English and the prices were in Canadian dollars. He did not intend to import furanylfentanyl into Canada.
The Defence also argues that Darcy Oake is an addict who purchased the furanylfentanyl for personal use. He gave some to Courtney Janes in exchange for some Clonazepam, which is he why he plead guilty to trafficking, but his intention was to consume the furanylfentanyl himself.
With respect to the criminal negligence causing bodily harm, the Defence argues that there is a possibility that Courtney Janes ingested another drug, like Clonazepam, which breaks the chain of causation so that the furanylfentanyl did not cause Courtney Janes’ bodily harm.
The Defence argues that the evidence does not prove beyond reasonable doubt that Darcy Oake is guilty of importing furanylfentanyl; possession of furanylfentanyl for the purpose of trafficking; or a criminal negligence causing bodily harm, and he should be found not guilty of those offences.
The Crown called eighteen witnesses during the trial: Corporal Ben Fage, Constable James Gallant, Constable Tyler Dunphy, Corporal William Sturgeon, Corporal John Hartnett, Corporal Jason Hancey, Constable Paul Mounsey, Dean Oake, Lori Dashney, Courtney Janes, Samantha Janes, Barbara Mezaros, Blaine McDonald, Dwight Carpenter, Sam Anderson, Genevieve Benoit, Dr. Graham Jones, and Dr. Jennifer Butler.
The Defence called Darcy Oake to testify.
There were a number of exhibits entered as evidence, including agreed statements of facts, photographs, a phone extraction report from Darcy Oake’s cell phone, a laptop extraction report from Dean Oake’s laptop, and medical records. I am not going to summarize all of the evidence in my decision today, but I will refer to significant portions of the evidence. I am going to focus on the evidence that is relevant to the issues that I have to decide. But in coming to my decision, I have reviewed and considered all of the evidence that was presented.
At the outset, I want to refer to several fundamental principles that are applicable in all criminal cases. The first is that Darcy Oake is presumed innocent of these charges; he does not have the burden of proving that he is not guilty. Darcy Oake is considered innocent throughout the case. The presumption of innocence means that the burden of proof is on the Crown and always remains on the Crown.
The second principle is the requirement for proof beyond a reasonable doubt. The Crown is required to prove each element of the offences beyond a reasonable doubt. This is a high standard of proof; probably, or likely guilt, is not proof of guilt beyond a reasonable doubt. It is not proof to an absolute certainty, but it is a very high standard of proof. A reasonable doubt is not an imaginary, far-fetched, or frivolous doubt. It is not a doubt based on sympathy or prejudice. Instead, a reasonable doubt is a doubt based on reason and common sense. It is a doubt that comes logically from the evidence, or that comes from the absence of evidence.
The standard of proof beyond a reasonable doubt does not apply to individual pieces of evidence, but to the totality of the evidence upon which the Crown relies to prove guilt. I am required to consider all of the evidence, as well as to consider the lack of evidence. I am also entitled to determine the weight to be given to individual parts of the evidence. The standard of proof beyond a reasonable doubt also applies to the credibility of witnesses. When assessing a witness’ credibility, I can accept all, none, or some of the witness’ evidence; it is not an all-or-nothing.
The accused is entitled to the benefit of the doubt that arises from issues of credibility or reliability of the witnesses. I am not required to firmly believe or disbelieve any witness. If I am left unsure about what I believe or what I accept, Darcy Oake is entitled to the benefit of that doubt.
In this case, the Defence presented evidence and Mr. Oake testified. This requires me to consider the evidence of the accused. In doing so it is not simply a credibility contest and determining which version I prefer. The analysis established by the Supreme Court of Canada in the case of W. D. sets out how to assess credibility. First, if I believe the accused that he did not commit the offences charged, then I must find him not guilty of those offences. Even if I do not believe the accused, I must consider whether his evidence, considered in the context of the evidence as a whole, raises a reasonable doubt about his guilt. If the evidence of the accused does not leave me in a reasonable doubt, then I must consider whether I am convinced of the guilt of the accused beyond a reasonable doubt on the basis of the evidence that I do accept.
In this case, some of the evidence against Mr. Oake is circumstantial. In considering circumstantial evidence, a trier of fact is asked to draw certain inferences from the evidence. A verdict of guilty based entirely or substantially on circumstantial evidence cannot be reached unless the trier of fact is satisfied beyond a reasonable doubt that guilt is the only reasonable inference to be drawn from the whole of the evidence.
In deciding whether the only reasonable inference is that the accused is guilty, the trier of fact must consider whether there are other reasonable possibilities that are inconsistent with guilt. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt. R. v. Villaroman, 2016 SCC 33.
A gap in the evidence may lead to inferences other than guilt, however those inferences must be reasonable considering the evidence, assessed logically and in light of human experience and common sense. Other reasonable possibilities must be based on logic and experience applied to the evidence, or the lack of evidence, and not on speculation. Villaroman at para. 36-37.
The Supreme Court of Canada in Villaroman also cited the Alberta Court of Appeal decision in Dipnarine, 2014 ABCA 328 at para. 29, which held that “alternative inferences must be reasonable and rational, not just possible.” A trier of fact cannot base a decision on irrational or unreasonable inferences.
These are some of the principles which are applicable in this case.
Turning now to the elements of the offences. In order to prove the offence of importing a controlled substance, contrary to s. 6(1) of the Controlled Drugs and Substances Act, the Crown must prove each of these essential elements of the offence beyond a reasonable doubt:
(1) That Darcy Oake imported a substance into Canada;
(2) That the substance was furanylfentanyl;
(3) That Darcy Oake knew that the substance was furanylfentanyl; and
(4) That the importing was intentional.
Darcy acknowledged that he ordered furanylfentanyl off of the internet and that the furanylfentanyl came in a package with Hong Kong on the label. He testified that he did not know that the furanylfentanyl was coming from outside of Canada and thought it was coming from within Canada. The issue then for this offence is whether importing was intentional, whether Darcy Oake knew that the furanylfentanyl was coming from outside of Canada.
In order to prove the offence of trafficking in furanylfentanyl contrary to s. 5(1) of the Controlled Drugs and Substances Act, the Crown must prove each of these essential elements of the offence beyond a reasonable doubt:
(1) That the substance was a controlled substance, namely furanylfentanyl;
(2) Darcy Oake trafficked in furanylfentanyl;
(3) Darcy Oake knew the nature of the substance; and
(4) Darcy Oake intentionally trafficked.
This offence is not in dispute. Darcy Oake entered a guilty plea to this offence. When he testified, Darcy Oake acknowledged that he gave furanylfentanyl to Courtney Janes on November 23, 2016, in exchange for some of her Clonazepam.
In order to prove the offence of possession for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, the Crown must prove each of these essential elements of the offence beyond a reasonable doubt:
(1) That the substance was a controlled substance, namely furanylfentanyl;
(2) That Darcy Oake was in possession of the substance;
(3) That Darcy Oake knew the nature of the substance; and
(4) That Darcy Oake possessed the substance for the purpose of trafficking.
Darcy Oake acknowledged that he was in possession of the furanylfentanyl, but denied that he possessed it for the purpose of trafficking, claiming that he had the furanylfentanyl for personal use. The issue for this offence is whether Darcy Oake possessed the furanylfentanyl for the purpose of trafficking.
In order to prove the offence of criminal negligence causing bodily harm contrary to s. 221 of the Criminal Code, the Crown must prove each of these essential elements of the offence beyond a reasonable doubt:
(1) Darcy Oake gave furanylfentanyl to Courtney Janes;
(2) In giving furanylfentanyl to Courtney Janes, Darcy Oake showed a wanton or reckless disregard for the lives or safety of others; and
(3) Darcy Oake’s conduct caused bodily harm to Courtney Janes.
Darcy Oake acknowledged that he gave furanylfentanyl to Courtney Janes, and that the Rhabdomyolysis that she suffered consistuted bodily harm, but argued that it has not been proven that the furanylfentanyl caused her bodily harm, and that he did not show wanton or reckless disregard for her life or safety in giving her the furanylfentanyl.
The Crown has also argued that bodily harm can result from the extended period of unconsciousness that Courtney Janes experienced, in addition to the Rhabdomyolysis that she suffered. However, given the Defence’s acknowledgement that the effects of the Rhabdomyolysis consisted bodily harm, it is not necessary to decide whether bodily harm also resulted from the period of time Courtney Janes was unconscious.
So there are four issues that are in dispute following the trial and that must be decided:
(1) Whether Darcy Oake intentionally imported the furanylfentanyl into Canada;
(2) Whether Darcy Oake possessed the furanylfentanyl for the purpose of trafficking;
(3) Whether, in giving Courtney Janes the furanylfentanyl, Darcy Oake showed a wanton or reckless disregard for her life or safety; and
(4) Whether the furanylfentanyl caused the bodily harm suffered by Courtney Janes.
I have considered the other elements of each of the offences and the acknowledgement by Defence that those elements are not in dispute based on the evidence. I have also considered the evidence that has been presented in this trial and Darcy Oake’s testimony, acknowledging his conduct with respect to those other elements, and as such, I do not intend to review those elements and the evidence on those elements in this decision in detail.
I have considered all of the evidence, and I am satisfied that the other elements of each of the offences have been proven beyond a reasonable doubt. This decision will mainly focus on what is an issue in this trial and the evidence applicable to those issues.
The Crown must prove beyond a reasonable doubt that Darcy Oake intended to import furanylfentanyl into Canada. In considering the meaning of importing, the ordinary meaning of the word applies, which means, to bring the drugs into the country or to cause the drugs to be brought into the country, Bell v. the Queen, [1983] 2 S.C.R. 471 at 489.
In Bell, the Supreme Court of Canada considered whether importing was complete once the drugs had crossed the border into Canada, or whether it was a continuing offence that was not complete until the drugs reached its final destination in Canada. The majority in Bell concluded that it was not a continuing offence and was complete when the drugs entered the country. The minority in Bell was of a different view. Justice Dickson viewed the offence of importation as follows (at page 481):
The elements of an offence of importing are present as soon as the goods cross the border, but the offence is not over and done with until the goods have reached their intended final destination within Canada. Accordingly, a charge could be laid relating to the point of entry or of destination or anywhere in between.
In the more recent case of R. v. Vu, 2012 SCC 40, the Supreme Court of Canada revisited the issue of continuing offences, this time in the context of a kidnapping offence. The Court drew a distinction between when an offence was complete in law and when an offence was complete in fact, stating (at paragraph 67) that:
Just because the offence was complete in law does not mean that it was also complete in fact.
Subsequent courts have considered the reasoning in Vu in the context of importation cases, and have concluded that:
While importing may be legally complete on entry into Canada, it is not factually complete until the contraband and its carrier have cleared customs and thereby become available to their ultimate recipient.
R. v. Foster, 2018 ONCA 53 at paragraph 106.
In R. v. Onyedinefu, 2018 ONCA 795 at para. 8, the Ontario Court of Appeal described importing as:
A process that begins with the procurement of the contraband, its transport to a point of entry, and ultimately to a domestic destination or recipient.
While the offence of importation may be considered to be legally complete at the time that the drugs cross the border or are transported to a point of entry, it is now not considered factually complete until the drugs have cleared customs and are available to the intended recipient: R. v. Badu, 2019 ABQB 68.
This is not a situation where the accused personally brought the furanylfentanyl into Canada. It is alleged that the accused caused the drugs to be brought into the country. The package was shipped by mail after being ordered off the internet by the accused. Thus, the actus reus of importing the furanylfentanyl was legally complete when the package entered into Canada, but was not factually complete until it was placed in the mailbox and retrieved by Darcy Oake. The package entered Canada through the mail system and became legally complete at the point of entry, which was at the postal facility in Edmonton, and factually complete when the package was placed in Dean Oake’s mailbox and became available to its intended recipient, Darcy Oake.
The Crown must prove that Darcy Oake knew that the furanylfentanyl he “knowingly expected and accepted were from out of the country”. R. v. Atuh, 2013 ABCA 350 at para. 7.
There are two ways in which the Crown can prove the accused’s knowledge of where the drugs were coming from. One way is actual knowledge, so proving that Darcy Oake actually knew or was aware that the furanylfentanyl came from outside Canada. The second way is to prove that Darcy Oake was aware of the need to make an inquiry about where the furanylfentanyl was coming from, but deliberately failed to do so because he did not want to know the truth about it.
Darcy Oake testified that he ordered the furanylfentanyl off a website on the internet. He was interested in purchasing drugs from the internet and thought maybe he could get drugs cheaper by ordering from the internet. He began by searching using Google, using regular internet browsers. During this process, he came across instructions about how to buy drugs on the darkweb using a Tor browser and similar programs. Darcy Oake eventually downloaded the Tor browser. He testified that he thought the website that he used to purchase the furanylfentanyl was Black Market Reloaded or Black Market v2.0, which I will refer to as the drug website.
The drug website required payment in bitcoins. Darcy Oake went to a website called localbitcoins.com and set up a trade to purchase bitcoins. Once the trade was set up, he was sent instructions on how to pay for the bitcoins. Once payment was sent, then the bitcoins would be released to Darcy Oake’s account on the localbitcoins.com site. In this case, Darcy Oake deposited $550 to a bank account at TD Canada Trust on October 21, 2016. He was instructed to then write “No Refunds” on the receipt and send a picture of the receipt to the person selling the bitcoins.
Darcy Oake initially planned to buy Xanax and knew from his internet research that they went for between two and five dollars a pill, so he planned to buy 100 or more Xanax. He purchased an extra $50 in bitcoins because the price of bitcoins fluctuated, he explained, and he wanted to ensure that he would have enough bitcoins in case the price fluctuated.
Darcy Oake testified that once he had the bitcoins, he went on the drug website. There, the prices were displayed in Canadian dollars. Xanax was offered on the website and he thought it was a 100 Xanax for $200 Canadian. Once he realized that the Xanax was going to be cheaper than he had anticipated, Darcy Oake started to look at other items on the drug website. He noticed that furanylfentanyl was advertised for sale, and ten grams could be purchased for $200. He clicked on the description and it said it was ten times less potent than fentanyl. Furanylfentanyl did not have any customer reviews, unlike some of the other products, so he was skeptical about whether he would receive the furanylfentanyl, but he decided to purchase and see if it would come. There was a little bit of money left over, so he decided to purchase some cigarettes as well.
Darcy Oake testified that he ordered the drugs and cigarettes. He sent bitcoins to pay for the transaction to the address for payment listed on the drug website. Darcy Oake testified that he communicated with the seller using PGP4win, which is an encrypted message system. He sent this person his name and mailing address, so that the packages could be shipped to him. The shipper sent back three tracking numbers.
Darcy Oake testified that he did not know where the person he sent the bitcoins to was located. He also testified that the site was in English and was displaying prices in Canadian dollars, so he assumed the drugs were coming from Canada. Darcy Oake testified that there was nothing on the website that indicated where the furanylfentanyl was coming from.
Darcy Oake testified that he copied and pasted the three tracking numbers into a text message, or a text document on his computer. He thought that after the Xanax arrived, he deleted the tracking number for that package.
Once Darcy Oake received the tracking numbers from the seller, he used them to track the packages on the Canada Post website. He testified that the package with the RC tracking number was not working on the Canada Post website. He initially thought that the Canada Post website had not been updated yet, and waited to check the number again. When he checked the RC tracking number again, it still did not work. He then put the RC tracking number in Google. Google returned a tracking site, which was a Hong Kong tracking site or perhaps China, he thought. The only information that showed for the package was that it was shipped. At that point, Darcy Oake suspected that the package was coming from outside of Canada. He testified as follows:
Question: And what did you learn about your package at that point?
Answer: Well, I thought maybe this is -- maybe it’s coming from Hong Kong or China, maybe…
The package of Xanax arrived a week and a half after Darcy Oake placed the order. The third and fourth week after placing the order, Darcy Oake had not received the furanylfentanyl and was wondering about the package. The tracking site was not showing any updates. Darcy Oake thought he had gotten ripped off.
Darcy Oake testified he sent a message through the encrypted mail program to the seller, telling the seller the furanylfentanyl had not arrived, and asking about it. He stated that he wanted to, “maybe, like, get my money back or something, and see what happened”.
A few hours later, he got a response. The seller responded that the tracking number did not seem to be working and to wait a couple more days and see if the package arrived. Darcy Oake waited a couple more days and the package did not arrive. He messaged the seller again, saying that the package still had not arrived. The seller later responded with a message saying that a replacement package had been sent, and provided a tracking number for the second package.
The tracking number was EA172312646CN. For convenience, I will refer to this number as the EA tracking number, and I do not think that there is any issue regarding the accuracy of this number or that this was the tracking number that the witnesses were referring to in their testimony.
Similarly, with the package with the RC891008003HK tracking number, I do not believe there is any issue with this one as well, and I have and will continue to refer to this as the RC tracking number.
Darcy Oake copied the EA tracking number into the same text document on his computer. The next day, he testified, on November 23, 2016, the original package of furanylfentanyl arrived. The cigarettes also arrived the same day.
The package with the EA tracking number was mailed from China on November 21, 2016. It arrived at Vancouver on November 24, 2016, where it was sent for customs review. At approximately 12:20 pm on November 27, 2016, a Canadian Border Services Agency Officer seized the parcel containing furanylfentanyl at the CBSA Screening Facility in Richmond, British Columbia. The parcel was addressed to Darcy Oake.
The package with the RC tracking number was dispatched from Hong Kong on October 28, 2016, according to Canada Post tracking. The package was next processed at a postal facility in Edmonton, on November 17, 2016. An opened envelope with the RC tracking number on a label that also said Hong Kong on it and addressed to Darcy Oake, at his father’s address, was located by the police in a garbage in the garage, at Darcy Oake’s residence, on November 25, 2016.
Corporal Hancey was qualified as an expert in the acquisition, examination and analysis of digital evidence. He conducted a forensic examination of the laptop seized at Darcy Oake’s residence. The laptop belonged to Dean Oake, and Darcy Oake acknowledged that he regularly used the laptop, and he said he used the laptop to purchase the bitcoins and furanylfentanyl, to communicate with the seller, and to monitor the shipping progress of the packages.
Corporal Hancey’s examination of the laptop did not reveal any information which would indicate which website Darcy Oake used to purchase the furanylfentanyl, whether he would have known where the seller was located, or whether he would have known that the furanylfentanyl was coming from outside Canada at the time of purchase.
In his examination of the laptop, Corporal Hancey located multiple hits for keywords, including the RC tracking number, the EA tracking number, Hong Kong, China Post, Canada Post, and Hong Kong Post. Corporal Hancey located a text document on the laptop which contained the two tracking numbers: the EA tracking number and the RC tracking number.
In examining the laptop, Corporal Hancey also located a URL which showed that the website www.hongkongpost.hk/mail_tracking was last accessed by someone using the computer on October 29, 2016. This is all consistent with Darcy Oake’s evidence that once he received the tracking numbers, he began to do searches trying to track the packages.
Courtney Janes was a friend of Darcy Oake’s and visited him during the time he was either researching or purchasing the bitcoins for furanylfentanyl. In her evidence, she said that she thought the furanylfentanyl came from China. Her evidence on this point was as follows:
Question: Ms. Janes, do you know where Mr. Oake got the furanylfentanyl?
Answer: I don’t know. Like, I think it came from China. I’m not -- I’m hundred -- not a hundred percent sure.
Question: Well, why do you say this? Why do you say China?
Answer: Why? What do you mean? Like, how I know that?
Question: Yes. How do you know that?
Answer: Because I was there when he ordered it online.
Later she was asked again about where the furanylfentanyl came from:
Question: Okay. And so you started off saying, when I asked you if you knew where Mr. Oake got the fentanyl, by saying from China. So why -- why do you -- what did you see or hear that made you think that it was coming from China?
Answer: I’m pretty sure I’d seen it on the website and that’s why it took so long for it to get here, because the Xanax got here, like, a couple weeks before fentanyl did.
Question: What did you see on the website?
Answer: What do you mean?
Question: Well, you said you’re pretty sure you saw it on the website.
Answer: Oh, on the side it says where it’s coming from and the weight and price.
Question: Did Mr. Oake ever discuss with you where it was coming from after the order?
Answer: I don’t remember.
In cross-examination, Courtney Janes reiterated that she was pretty sure that the fentanyl that Darcy Oake ordered came from China or Hong Kong. Later when asked if she knew the fentanyl Darcy Oake ordered was coming from China, she said, “Not now, I don’t know”.
It was clear from Courtney Janes’ evidence that while she testified that she was present when Darcy Oake ordered the drugs, she was not paying close attention to the process. She testified that she was looking back and forth as Darcy Oake was on the drug website, and she was not watching him the whole time he was on the computer. She was uncertain about a number of things regarding the transaction, including how much Darcy Oake ordered and how much the drugs cost. Ultimately, she was not sure where the drugs were coming from.
Considering the evidence on this issue, I am unable to reject Darcy Oake’s evidence that he did not know the furanylfentanyl was coming from outside Canada when he ordered it. Even if there were a reason to reject Darcy Oake’s evidence on this point, there is no evidence to conclusively establish that Darcy Oake purchased furanylfentanyl knowing that it was coming from outside Canada.
While I cannot conclude that Darcy Oake was aware that the furanylfentanyl was coming from outside Canada at the time he ordered it, the evidence does establish that he became aware of this shortly after he placed the order and long before he received the furanylfentanyl.
The package with the RC tracking number was shipped on October 28, 2016, from Hong Kong, and the forensic examination of the laptop shows that by the next day, Darcy Oake had accessed the hongkongpost.hk mail tracking website. He testified that he began by searching the tracking number on the Canada Post website. When the RC tracking number did not work on the Canada Post site, he entered the number in Google and the Hong Kong tracking site came up. At that point, he thought, “maybe it’s coming from Hong Kong or China.”
In cross-examination, Darcy Oake testified:
Question: Right. And when did you start checking hongkongpost.hk?
Answer: Like I said, it was like I -- I had tried using the first number, that RC one, in the Canada Post website. And then it wasn’t working, like I said. And then like I said, I thought it would maybe be updated. I thought maybe it wasn’t working or something. And then, so I, it was like maybe the next day that I punched it into Google -- the tracking number. And then it came up with a link for a Hong Kong tracking, or some kind of tracking website for China or something.
Question: Right. So at that point you knew that the package was coming from Hong Kong?
Answer: I knew, yeah. But like I said, it was like -- it was like -- it was like I was still kind of skeptical because it didn’t show any tracking updates.
I am satisfied beyond a reasonable doubt that by October 29, 2016, Darcy Oake knew that the furanylfentanyl was coming from outside of Canada; he knew that the furanylfentanyl was coming from either Hong Kong or China. I am also satisfied beyond a reasonable doubt that in subsequent exchanges with the seller, he would have known or suspected that the second package was also coming from outside of Canada.
Darcy Oake contacted the seller when the first package did not arrive and inquired about the package. He stated that his purpose in contacting the seller was that he wanted his money back or something. Darcy Oake did not solicit a replacement package and did not explicitly ask the seller for his money back. He stated that he simply messaged the seller that the package had not arrived, and when that package had not arrived a few days later, he again messaged the seller that the package had not arrived. Darcy Oake’s actions in messaging the seller twice about the package not arriving caused a replacement package to be sent. When informed that a replacement package had been sent and provided with the tracking number, Darcy Oake copied and pasted the EA tracking number into the text document. It is apparent that he wanted the furanylfentanyl and was not concerned with whether it was being sent from Canada or from another country.
The offence of importation was legally complete when the package entered into Canada and factually complete when it was placed in the mailbox and retrieved by Darcy Oake. The package with the RC tracking number entered Canada on November 17, 2016, in Edmonton, and the package with the EA tracking number entered Canada on November 21, 2016, in Vancouver. The package with the RC tracking number was placed in Dean Oake’s mailbox and picked up by Darcy Oake on November 23, 2016. Prior to any of these dates, Darcy Oake knew that the furanylfentanyl he ordered was coming from outside of Canada. For these reasons, I am satisfied beyond a reasonable doubt that Darcy Oake intended to import furanylfentanyl into Canada.
Now the Crown must prove beyond a reasonable doubt that the accused possessed the furanylfentanyl for the purpose of trafficking. Often in cases where an accused is facing a charge of possession for the purpose of trafficking, the Crown will call expert evidence to assist the Court in making the determination of whether the possession of the drugs by the accused is consistent with possession for the purpose of trafficking.
In this case, the Crown called Constable Paul Mounsey who was qualified as an expert in: the methods of distribution, packaging and consumption of cocaine and opioids; the pricing of cocaine and opioids; the language and paraphernalia associated with cocaine and opioids; and drug jargon in general.
The Defence contested Corporal Mounsey’s qualifications and cross-examined him extensively on them. The challenge of the Defence was whether the officer was a properly qualified expert in the area of fentanyl or furanylfentanyl. I ruled that the officer was qualified and that some of the issues that Defence counsel had raised went to the weight to be given to Constable Mounsey’s opinion. And I will not repeat my reasons and I do not intend to add to those reasons, although I had given that idea some consideration.
In closing submissions, the Crown conceded that Corporal Mounsey’s evidence was problematic in many respects, and stated that the Crown was not relying on the Officer’s evidence for the proposition that possession for the purpose of trafficking had been proven beyond a reasonable doubt.
In light of this concession, I do not intend to review Corporal Mounsey’s evidence other than to note that the cross-examination of Corporal Mounsey revealed a number of problems with his evidence regarding fentanyl and furanylfentanyl, and the base of knowledge used to come to his opinion. It conflicted with the evidence of Dr. Jones, a toxicologist, in some respects. But I would also note that Dr. Jones also testified that furanylfentanyl had not been scientifically tested like fentanyl has, and the conclusions regarding its potency are based in part on anecdotal evidence.
In any event, there were enough problems with Corporal Mounsey’s evidence that I would be reluctant to use it to come to the conclusion that Darcy Oake possessed the furanylfentanyl for the purpose of trafficking, so I have not considered Corporal Mounsey’s evidence in my analysis on this issue.
Trafficking is considered broadly. It does not mean just to sell, but it also covers activities such as giving or delivering drugs to someone. It is not required that the accused profits from the activity. Therefore, to traffic can mean to sell, administer, give, transfer, transport, send, or deliver something to someone.
Darcy Oake testified that he did not have the intention of selling or giving away the furanylfentanyl. He purchased the furanylfentanyl on the internet so that he could get it cheaper for himself than buying drugs on the street. He explained that he gave the furanylfentanyl to Courtney Janes in exchange for Clonazepam because she was always asking him and he eventually gave in. He testified about this as follows:
Question: How is it that the transaction with Courtney came to take place?
Answer: Well, like, it -- she was -- she was always asking me, like I said. I think that day even she had asked me if I had it, and I told her I did, and she wanted some, and I told her no, initially, like I said. And then after her constant -- constantly asking me, nagging me, I guess, like begging me, pretty much, I gave in and I gave her some.
Other evidence adduced in the trial contradicted Darcy Oake’s assertion that he did not intend to traffic the furanylfentanyl. The forensic analysis of Darcy Oake’s cell phone, conducted by Corporal Hancey, contained a number of text message exchanges with several people.
Darcy Oake had an exchange with someone labelled “Big” on his cellphone. On November 2, 2016, they had a text exchange regarding selling the furanylfentanyl:
16:13:07, Darcy Oake to Big:
And I’m going to test the fent wit u when it comes
16:13:14, Darcy Oake, again, to Big:
Free.
16:16:12, Big in response to Darcy Oake:
Sweet bro that would be awesome and I will bring a bunch of paper as well. Please don’t tell a soul when it gets in. Just tell me cuz we will test everything and if it’s good I will just buy everything that u want to sell. I will buy everything bro lol but don’t tell a soul.
16:17:23, Darcy Oake to Big:
Yes my plan exactlyp
Later, on November 2, 2016, at 17:49:10, Darcy Oake texts Big:
And I’m giving u free samples on the fennies when there here.
Big and Darcy Oake have several conversations through text messages about the purchase of drugs and it is apparent that Darcy Oake purchased or attempted to purchased drugs from Big on several occasions.
Darcy Oake also had text exchanges with someone labelled Tamara Marie on his telephone about what appeared to be drug transactions between October 2, 2016 and November 22, 2016. It appears that Darcy Oake facilitated a drug transaction between Tamara Marie and someone, in which Tamara Marie got ripped-off, getting less than what she had paid for. Many of the text exchanges involving Tamara Marie asking about getting either her money back or the missing drugs, and Darcy Oake promising Tamara Marie that the situation would be taken care of.
On October 12, 2016, Darcy Oake texted Tamara Marie stating:
21:13:58: Ya I kno fkin idiot and then leaves town trying to sell weed and ur 2nd person he ripped off, he got the other ppl back tho
21:14:53, again, Darcy Oake to Tamara Marie:
Like believe me I’m fkin choked too, gonna have to pay this if he doesn’t, and then in defiantly not gonna f wit him anymore if I gotta pay it.
At 21:16:06, again, Darcy Oake to Tamara Marie:
And I kno this is my fault cause u asked me to get it not him, so I will make it right thanks for bearing wit me, and stupid thing is too I have him the whole 1000.
21:16:13, again, Darcy Oake to Tamara Marie:
Didn’t even make a dime.
Eventually Darcy Oake texts Tamara Marie that he will probably have to be the one to get her back when she continues to text him and he is unable to get the other person to compensate her.
Later, Darcy Oake and Tamara Marie text about a planned trip, driving, where they would go with someone and split the cost. This is November 10, 2016, before the furanylfentanyl arrives. Darcy Oake texts Tamara Marie, that he, “might not have enough I’m waiting on mail”.
Courtney Janes’ evidence was also that Darcy Oake was going to sell the furanylfentanyl. She testified that he was going to sell the furanylfentanyl because he was in debt and needed to make money. She testified that she purchased Xanax from Darcy Oake a week or two before she got the furanylfentanyl from him.
She also testified that when Darcy Oake texted that he was not going to front her the furanylfentanyl, he also said that he needed money and he was not going to fuck this up like he did the other one. This text exchange between Courtney Janes and Darcy Oake was located on Darcy Oake’s cell phone. It occurred on November 23, 2016, as follows:
At 18:37:51, Courtney Janes to Darcy Oake:
If I can only get those pam’s till tomorrow will you trade me, then tomorrow I’ll buy some?? Pleaaseeeee, you know I’d do it for you.
At 18:38:15, Courtney Janes, again, to Darcy Oake:
Ad you promises you’d let me know when it was in ans you didn’t … wth, bruh.
At 18:43:20, Darcy Oake responded to Courtney Janes:
wth, I didn promise u.
At 18:43:36, Darcy Oake again to Courtney Janes:
Jus see if u can get some money and whatever and let me kno.
Then a short time later, at 18:46:26, Darcy Oake to Courtney Janes:
And u are the 2nd to kno I just got it wtf lol
At 18:46:54, Darcy Oake to Courtney Janes:
And I’m not going to front cause I need money and not going to fuk this up like I did the other one.
According to Courtney Janes, Darcy Oake was talking about himself. She was asked about this in cross-examination:
Question: Right. And that was a reference to giving you Xanax that you didn’t pay for.
Answer: No. That he’s -- he’s talking about himself. Like, he’s talking about before. Like, when he was drug dealing before, he fucked up and he doesn’t want to fuck it up again.
Later in cross-examination, Courtney Janes was asked about her statement to the police, where she was asked about whether Darcy Oake mentioned selling the furanylfentanyl to anybody else. In the statement, Courtney Janes responded, “No. He just said be really careful with it. Don’t do a lot.”
Courtney Janes explained that she was really out of it when she spoke to the police. The questions and the statement of Courtney Janes which preceded that question related to Darcy Oake providing her with furanylfentanyl in the garage.
The inconsistency in Courtney Janes’ evidence regarding whether Darcy Oake mentioned that he was considering selling the furanylfentanyl to anybody else does cause me some concern. Her statement to the police was taken on November 25, 2016, at the hospital. Her explanation was that she was still out of it is a plausible one. Courtney Janes had also just experienced a significant medical incident. Her evidence was that after taking the furanylfentanyl, she did not remember going home, and her next memory was waking a day later being unable to walk. There is a possibility that the furanylfentanyl affected Courtney Janes’ memory of events prior to her ingesting it.
In the circumstances, were this the only evidence of Darcy Oake’s intention to sell the furanylfentanyl I would not be satisfied solely on Courtney Janes’ evidence of Darcy Oake’s intentions. In considering this evidence, I do not accept Darcy Oake’s evidence that he did not intend to sell the furanylfentanyl.
In cross-examination, Darcy Oake denied that he sometimes sold drugs to make money, to buy other drugs, but he later admitted that he had sold marijuana in the past. And despite his assertion that he did not intend to traffic in the furanylfentanyl, Darcy Oake’s own evidence contradicted him. He wasn’t as reticent to provide the furanylfentanyl to others as he claimed. Darcy Oake testified that he provided some furanylfentanyl to his friend, Lance Christiensen when it first arrived. He also agreed that he had provided some furanylfentanyl to Big, and that he had traded Clonazepam for furanylfentanyl with Courtney Janes.
Another concern with Darcy Oake’s evidence was that he was evasive when confronted with the text messages that appeared to imply that he was in debt to people and that he was planning on selling the furanylfentanyl. Darcy Oake answered some questions saying that he did not know or could not remember, and stated that it had been three years and he did not know what a conversation meant now.
The meaning of the text message exchanges that Darcy Oake had with Big and Tamara Marie appear to be clear. They were mainly about drug transactions. Darcy Oake had to be reminded of the details of text message exchanges he had with Big and Tamara Marie. This is in contrast to his evidence regarding the purchase of the drugs on the internet or giving Courtney Janes furanylfentanyl, where he testified in detail about these topics. In testifying about these areas, Darcy Oake’s evidence was much more detailed and sure than evidence like the text messages which tended to implicate him.
For these reasons, I reject Darcy Oake’s evidence on this issue, and his evidence, when considered in the context of the evidence as a whole, does not raise a reasonable doubt. While Courtney Janes may have owed money to Darcy Oake for the Xanax, or for another reason and his text that he was not fronting her could have been a reference to that. It could also indicate that Darcy Oake was not fronting anyone and was planning on selling the furanylfentanyl.
Just prior to Darcy Oake texting Courtney Janes that he would not front her, he also texted her, telling her to see if she could get some money together. When considered with the evidence contained in the other text messages, it is likely that this reference was that he was not fronting anyone, including Courtney Janes, and was going to sell the furanylfentanyl.
Considering the other evidence, the text message exchanges with Big, Courtney Janes and Tamara Marie, and Courtney Janes’ evidence, these all demonstrate that Darcy Oake was having money issues, he was in debt, he is an addict who was purchasing drugs, and he was planning on selling the furanylfentanyl to make some money. I am satisfied beyond a reasonable doubt that Darcy Oake possessed the furanylfentanyl for the purpose of trafficking.
Darcy Oake was using the furanylfentanyl personally, as the two overdoses he experienced attest to, but he also had another purpose in possessing the furanylfentanyl. In addition to supplying himself with the furanylfentanyl, he intended to sell some of the furanylfentanyl in order to make some money.
Given his addictions, it is likely that the money he made from selling the furanylfentanyl would have been used to purchase other drugs.
Turning now to the criminal negligence causing bodily harm charge. As I mentioned, there are two issues to be considered for this charge.
To show that Darcy Oake showed a wanton or reckless disregard for the lives or safety of others, in this case Courtney Janes, the Crown does not have to prove that Darcy Oake meant to kill or seriously harm Courtney Janes, or anybody else. Rather, the Crown must prove beyond a reasonable doubt that:
(1) The accused’s conduct represented a marked and substantial departure from the conduct of a reasonable person in the circumstances; and
(2) A reasonable person in the same circumstances would have foreseen that their conduct posed a serious risk to the lives or safety of others, or alternatively gave no thought to that risk. R. v. J. F., 2008 SCC 60 at paras. 7-9.
The accused’s conduct is measured against an objective standard, specifically what a reasonable person would have done or foreseen in the circumstances. The test is a modified objective test, as elaborated in R. v. Creighton, [1993] 3 S.C.R. 3 by Chief Justice Lamer, at page 26:
The Crown bears the burden of proving beyond a reasonable doubt that a reasonable person in the context of the offence would have foreseen the risk of death created by his or her conduct …[T]he reasonable person will be invested with any enhanced foresight the accused may have enjoyed by virtue of his or her membership in a group with special experience or knowledge related to the conduct giving rise to the offence…. In the present case, the reasonable person should be deemed to possess Mr. Creighton’s considerable experience in drug use. Once the Crown has established beyond a reasonable doubt that this reasonable person in the context of the offence would have foreseen the risk of death created by his or her conduct, the focus of the investigation must shift to the question of whether a reasonable person in the position of the accused would have been capable of foreseeing such a risk.
While Creighton and J. F. and many of the other cases deal with charges involving criminal negligence causing death, the principles with respect to the accused’s conduct are equally applicable to charges of criminal negligence causing bodily harm.
The conduct in this case is Darcy Oake providing furanylfentanyl to Courtney Janes. Darcy Oake received the furanylfentanyl on November 23, 2016, and he testified he took the package back to the garage and laid out two lines of furanylfentanyl. He snorted the first line, waited a bit, then snorted the second line. He then went to take his dog for a walk and he started blacking out. He staggered across the street and collapsed in the snow. A passerby saw him and called an ambulance.
Darcy Oake woke up in the hospital. The medical records show he was treated with Narcan before being discharged under his mother’s care that afternoon. The emergency room doctor spoke to him about the dangers of fentanyl while he was in the hospital.
After he was discharged from the hospital, Darcy Oake testified he was still getting high on the furanylfentanyl, but doing a lot less than he had. He was not weighing it, initially, but he testified that it looked like less. Later he did use a scale to try and weigh out a point, or a tenth of a gram, so that he knew how much he was doing.
Darcy Oake testified that the furanylfentanyl was really powerful and he told Courtney Janes to be super careful with it. Darcy Oake prepared the line of furanylfentanyl for Courtney Janes in the garage, and when she came over she snorted the furanylfentanyl. He testified that he wanted to put out an amount for her that would not be too much. He testified that he put out, “a few grains of the stuff for her,” and that it “wasn’t even really a line”.
In determining how much to give Courtney Janes, he testified, “well, based on what, like, the amounts I was doing and then that I’d OD’d and I did way too much, and then so I weighed out like a point, and then I took like a tiny portion of that to give to her”.
In cross-examination, Darcy Oake said it was a very, very, very tiny line of furanylfentanyl that he laid out for Courtney Janes in the garage. After Courtney Janes snorted the furanylfentanyl, she asked him for more and he gave her some furanylfentanyl on a piece of paper in exchange for 15 to 20 Clonazepam.
Darcy Oake testified that he told Courtney Janes in person to be careful not to mix the furanylfentanyl with any of her medication, and to do a tiny, tiny amount. Darcy Oake also testified that he told Courtney Janes on the phone that he did not want to give the furanylfentanyl to her because he had overdosed.
The text messages between Darcy Oake and Courtney Janes demonstrate that Courtney Janes was eager to try the furanylfentanyl and she acknowledged that in her testimony.
Prior to Courtney Janes going over to Darcy Oake’s house, she tested him, asking if the stuff was good. Darcy Oake responded, “it is insane,” “I will show u” and then, “u have to be super careful.” Courtney Janes testified that when she arrived at the garage, Darcy Oake was there. He told her about how he overdosed on the fentanyl earlier that day, and told her to be, “really, really careful with it”. Courtney Janes testified that she was not really concerned about taking the furanylfentanyl because she figured she was going to be okay.
Courtney Janes testified that Darcy Oake had laid out a big line of furanylfentanyl for her. Bigger than the lines of fake OxyContin that she had done with him in the past. She snorted the line of furanylfentanyl that he laid out for her. After that, she kind of remembered walking out the door. Courtney Janes’ memory of what occurred in the garage was somewhat vague. She could not recall the details of the conversation she had with Darcy Oake, and she was unsure about how she had provided the Clonazepam to Darcy Oake, whether she had counted out the Clonazepam at Darcy Oake’s, at Walmart, or in Dwight Carpenter’s vehicle. Courtney Janes did remember that Darcy Oake went upstairs to get more furanylfentanyl for her to take with her, and he gave her a piece of paper with the furanylfentanyl in it.
Darcy Oake testified in direct examination that he snorted furanylfentanyl on November 23rd before he overdosed. In cross-examination he said he snorted one pretty big line of furanylfentanyl. Then he said that he actually did two big lines. He snorted the first line, waited a bit, and then snorted the second line. However, he texted Big while in the hospital that day, that he only did “a tiny line”.
This inconsistency and other concerns I have previously stated with respect to Darcy Oake’s evidence cause me to question how much furanylfentanyl Darcy Oake prepared for Courtney Janes. Did he prepare only a tiny, tiny, tiny line, as he testified, or was it a big line, as Courtney Janes testified. I suspect that it was not a tiny, tiny line, but was larger than Darcy Oake is willing to admit now. In any event, the precise size of the line Darcy Oake laid out for Courtney Janes is not determinative on this issue.
In reviewing the evidence, the question is whether a reasonable person in these circumstances and with Darcy Oake’s experience in drug use would have been aware of the risk to the life or safety of Courtney Janes by providing her with furanylfentanyl. Objectively, the risk would have been obvious to a reasonable person in the circumstances. Darcy Oake had received the package of furanylfentanyl earlier that day and had immediately opened the package and snorted the substance which he had no assurance was furanylfentanyl. He apparently had little knowledge about the dangers of fentanyl and his only evidence regarding the furanylfentanyl was that the website indicated that it was ten-times less potent than fentanyl.
The website itself was a website on the darkweb. Darcy Oake was not sure of the name, and he had no familiarity with the supplier. Assuming that it can somehow be said that a drug dealer can be reputable, Darcy Oake had no assurance about the quality of the product he was receiving from this supplier.
It is clear from the evidence that Darcy Oake was subjectively aware that the furanylfentanyl posed a serious and obvious risk to the life or safety of Courtney Janes. Darcy Oake had overdosed on the furanylfentanyl earlier that day, and he had been advised about the general risks of fentanyl at the hospital. Darcy Oake was an experienced drug user and he had used drugs with Courtney Janes on several occasions prior to this.
Both Darcy Oake and Courtney Janes testified that he told her to be careful, super careful, or really, really careful with the furanylfentanyl. I conclude that Darcy Oake knew that he was giving Courtney Janes a drug that was dangerous and capable of causing her death or serious bodily harm. He knew there was a very real risk that she could overdose. He knew this because he had overdosed on the same drug less than 12 hours before. Despite this, Darcy Oake provided Courtney Janes with furanylfentanyl. He warned her about the furanylfentanyl, but ultimately he willingly prepared a line that she snorted. He gave her more furanylfentanyl to take with her, and let her walk out of his garage. He took no steps to ensure that she was okay before she left his garage.
I find that the accused’s conduct represented a marked and substantial departure from the conduct of a reasonable person in the circumstances. A reasonable person in Darcy Oake’s circumstances would have foreseen the obvious risk to Courtney Janes’ life and safety. In my view, Darcy Oake’s conduct showed a wanton or reckless disregard for the life or safety of Courtney Janes.
To prove that Darcy Oake caused bodily harm to Courtney Janes, the Crown must prove beyond a reasonable doubt that Darcy Oake’s conduct contributed significantly to the bodily harm Courtney Janes suffered.
The law with respect to causation was summarized in R. v. Hass, 2016 MBCA 42, and while it is a lengthy quote, it is a helpful summary of the law:
The test for causation in manslaughter is whether an accused person’s actions were a “contributing cause of death outside the de minimis range”. This test has also been expressed as a “significant contributing cause” or “substantial cause.” As explained in Nette, causation has two components -- factual causation and legal causation.
Factual causation concerns “an inquiry about how the victim came to his or her death in a medical, mechanical, or physical sense, and with the contribution of the accused to that result.” Furthermore, “factual causation is not limited to the direct and immediate cause, nor is it limited to the most significant cause.” In any given case, the trier of fact will have to make an assessment of the medical cause of death and consider the contribution of the accused to that result, usually by asking whether the deceased would have died but for the actions of the accused.
Legal causation is “directed at the question of whether the accused person should be held criminally responsible for the consequences that occurred.” It is based on “concepts of moral responsibility and is not a mechanical or mathematical exercise.” As stated by Karakatsanis in Maybin:
Any assessment of legal causation
should maintain focus on whether
the accused should be held legally
responsible for the consequences of his actions, or whether holding the accused responsible for the death would amount to punishing a moral innocent.
Even though both factual and legal causation must be present, a distinct two-step inquiry is not required. The two inquiries may be joined into one by asking whether the accused person’s actions significantly contributed to the victim’s death. [citations omitted]
The Supreme Court of Canada considered the issue of an intervening act in R. v. Maybin, 2012 SCC 24 and whether an intervening event could interrupt legal causation and result in the accused’s actions not being a significant contributing cause of death. The Court concluded at paragraph 28:
Even in cases where it is alleged that an intervening act has interrupted the chain of legal causation, the causation test articulated in Smithers and confirmed in Nette remains the same: Were the dangerous, unlawful acts of the accused a significant contributing cause of the victim’s death?
An intervening act and the accompanying risk of harm that is reasonably foreseeable will not usually break the chain of causation. It is sufficient if the general nature of the intervening act and the risk of serious harm are objectively foreseeable at the time of the accused’s actions. Maybin, para. 34, 38.
The voluntary consumption of drugs by a victim is one of many considerations in the circumstances of a case to determine whether the chain of causation is broken. Whether the voluntary consumption of drugs constitutes an intervening act will depend on the facts and circumstances of each case, considered along with the principles regarding causation. Hass, para. 62.
The Crown called two witnesses who are qualified as experts to provide opinion evidence to the Court. Dr. Graham Jones is a forensic toxicologist and was the Chief Toxicologist with the Chief Medical Examiner’s office of Alberta for 37 years until he retired in 2018. He was qualified as an expert in forensic toxicology, including the analysis of bodily fluids, tissues, and various powders, liquids, tablets, and capsules for the presence of alcohol, drugs, and other similar volatile compounds; the pharmacological and toxicological effects of alcohol, drugs and other similar volatile compounds on the human body; the pharmacokinetics of alcohol, drugs, and other similar compounds with respect to the absorption, distribution, and elimination of alcohol and drugs in the human body.
Dr. Jennifer Butler was the emergency room physician who initially examined Courtney Janes and who ordered her admitted into the hospital. She was the Chief of Staff at Stanton Territorial Hospital, as well as an emergency room physician. She is now a fulltime emergency physician at the Abbotsford Regional Hospital. She was qualified as an expert in family and emergency medicine, specifically diagnosing, treating, and caring for unscheduled patients with illness or injuries requiring immediate medical attention, and making decisions regarding a patient’s need for hospital admission, observation, or discharge.
Courtney Janes testified that she had no memory between her vague recollection of leaving Darcy Oake’s garage and waking up the next evening. She testified that she did not take any other drugs, other than the furanylfentanyl that day.
Dwight Carpenter, who was driving Courtney Janes around that night, testified that after Courtney Janes came out from Darcy Oake’s house, they drove back to the house where he, Courtney Janes and her boyfriend Blaine McDonald were living. They went inside and Courtney Janes grabbed something from the kitchen. He assumed she was getting a drink of water when he a heard a tap come on. Courtney Janes then went to sit on the couch, saying she felt -- she was feeling sleeping. Courtney Janes remained on the couch, sitting up sleeping for the next two to three hours until Dwight Carpenter went to bed around 1 am. When he got up the next day, around noon or 1 pm, and he went into the kitchen and saw Courtney Janes still passed on the couch in the living-room.
Barbara Mezaros, Courtney’s mother, went to Courtney Janes’ residence the next morning because Blaine McDonald could not get ahold of Courtney. She saw Courtney Janes sitting on the couch, slumped down asleep. She tried to wake her up, but was unable to wake her. She looked for drugs in the house, but was unable to find any. She stayed at the house for close to two hours. During that time, Courtney Janes was unconscious. Barbara Mezaros took a photograph of Courtney Janes that morning. The photograph was entered into evidence, and it shows Courtney Janes slumped down on the couch, unconscious. Barbara Mezaros testified that she laid Courtney Janes down on the couch and put a pillow under her head.
Later that same day, she asked her daughter Samantha to go check on Courtney. Samantha Janes, who is Courtney’s sister, came over that afternoon and tried to wake Courtney Janes up, but could not get her up. She testified that Courtney Janes said she could not sit up, her legs would not work, she did not know where she was, and did not know who Samantha was.
Courtney Janes was mumbling, she was in and out of consciousness. She described Courtney Janes’ breathing as shallow, long breaths, where in between breaths was seven or eight seconds, almost like Courtney was holding her breath. Samantha Janes testified that Courtney Janes told her that she took all her sleeping pills, which was why she could not move.
After about 45 minutes, Samantha gave up and went back to her mother’s house, and Dwight Carpenter said that he would keep an eye on Courtney Janes.
Courtney Janes testified that when she woke up, she was on the couch in the living room, she had no recollection of interacting with her mother or her sister at the house. She could not walk and had to crawl to the bathroom. The back of her neck was numb, as was her right side and right leg. Dwight Carpenter took Courtney Janes to the hospital. Courtney Janes could not walk and Dwight Carpenter had to help her.
At the hospital, Dr. Butler diagnosed Courtney Janes with Rhabdomyolysis, which she describes as a severe muscle injury which involves the breakdown of muscle cells. It can occur due to a crush injury, a major trauma, or if one has been in a coma-like state and not been moving their body adequately to ensure that muscle cells are not being damaged. The breakdown of muscle cells causes a release of potassium which is toxic to the heart. Rhabdomyolysis can also cause kidney failure because a product of cell breakdown is myoglobin which is toxic to kidneys.
Dr. Butler admitted Courtney Janes for this condition. Dr. Butler was unable to say how long someone would have to be immobile to suffer this condition. She testified that it would be a number of hours of being in a coma-like state where the levels of creatinine kinase, which is how muscle breakdown is measured, would begin to increase.
Dr. Butler testified that Courtney Janes reported taking fentanyl, which she found somewhat odd, because the fentanyl used in the hospital only lasts for twenty-minutes and does not result in a coma-like state. Courtney Janes denied to Dr. Butler that she had taken any other drugs.
Dr. Butler testified that drugs taken in combination can have longer effects. Her opinion was that Courtney Janes could have taken any number of ingestions that could have had long-acting effects. The Clonazepam could have acted with fentanyl if she took too much, or if she took too much Seroquel. The problem, stated Dr. Butler, was that there was no quantifiable way of measuring those things. When asked about the idea that Courtney Janes took fentanyl and whether that seemed odd with her presentation, Dr. Butler testified:
Well, knowing that there are different forms of fentanyl, such as carfentanil and regular fentanyl, so -- so the fact that the type of fentanyl -- you know, the -- the questions you’ve been asking me have been referring to the same fentanyl that we give in the hospital -- which we know well, we’ve studied well and we’ve given to our patients -- is not the same as carfentanil, or a variation of that fentanyl. And at that point, it just becomes a narcotic like any other, and it is treated like any other. And so the long-acting narcotics could certainly cause all of those symptoms, and when I say, initially, yes, was puzzling, because you do wonder about co-ingestion. But that being said, all drug ingestions from the street are -- are up for speculation, and certainly carfentanil is a completely different animal to the regular fentanyl that we use in the hospital.
One of the other drugs that Courtney Janes was prescribed was Clonazepam, which is a short-acting benzodiazepine that has a sedating effect. Dr. Butler testified that lab tests at the hospital can be ordered for benzodiazepines. Dr. Butler did not order the test because Courtney Janes was providing what she viewed as an accurate history, and the test can be inaccurate as it simply detects the presence of benzodiazepines but not the quantity. Clonazepam, she testified, has a short-acting effect, but it can be present in lab tests for a significant period of time following ingestion.
Dr. Jones testified that fentanyl is a synthetic opioid analgesic used as a pain killer or an anesthesia in medical settings. Fentanyl can induce sedation to the point of anesthesia if the dose is sufficient. Fentanyl is 50 to 100 times more potent than morphine, and 25 to 100 times more potent than heroine. The higher the potency will initially cause sedation. If the dose is high enough, unconsciousness or coma and ultimately death can occur. Death is caused, usually, because respiration is slowed to a lower rate than is sufficient to maintain the required level of oxygen in the blood, or it decreases the sensitivity of the body to a build-up of carbon dioxide. Normally, the build-up of carbon dioxide will trigger an increase in respiration to increase the rate of breathing to blow off the carbon dioxide and increase the level of oxygen.
Dr. Jones described furanylfentanyl as an analog, a chemical derivative of fentanyl. When asked about whether furanylfentanyl had a similar effect on the body as fentanyl, Dr. Jones testified:
Yes, to the best of our knowledge, it does. Furanylfentanyl, like a number of analogs, has never been tested in humans. It’s never undergone any clinical trials of any type that I am aware of. I think it may have undergone basic animal studies many, many years ago, when it was synthesized, but we know from those limited studies and the -- anecdotally, the reports from it being used illicitly -- that it has similar effects and would be expected to have similar effects to fentanyl.
Dr. Jones testified that the potency of furanylfentanyl was a matter of conjecture to some degree, because the drug has never really been studied clinically. Anecdotal reports indicate that furanylfentanyl may be up to about five times less potent than fentanyl. Other reports indicate that it may be roughly equivalent to fentanyl. Overall, Dr. Jones considered furanylfentanyl a potent opioid which probably is not significantly less potent than about five times less than fentanyl.
Dr. Jones testified that the presence of other substances in addition to fentanyl can have a significant effect. Any drug that will increase or cause sedation, would be a risk factor. Dr. Jones testified that Clonazepam is a benzodiazepine tranquilizer which has sedative effects. Clonazepam works on different receptors in the brain than furanylfentanyl. Dr. Jones’ opinion was that if one were to overdose on a large amount of Clonazepam, it is unlikely to kill you unless there are other drugs present, or you are very young or very old, or really compromised health-wise. Clonazepam does not produce a severe sedative effect on its own.
If Clonazepam was co-ingested with furanylfentanyl, Dr. Jones testified that this would cause increased sedation compared to either one alone. They can have, at the very least, additive sedative effects, and there is some indication that the effects may be more than just additive. Clonazepam would likely extend a period of unconsciousness if taken in combination with furanylfentanyl.
In Dr. Jones’ opinion, there would not be a dosage level of Clonazepam which would render the furanylfentanyl insignificant if co-ingested, because the furanylfentanyl always has to be significant. Dr. Jones was asked about the effect of a fentanyl overdose:
Question: Wouldn’t -- wouldn’t you expect someone to die of a fentanyl overdose in relatively short order, within an hour or so of taking the dosage?
Answer: No. Not necessarily. We’ve -- there’s usually two scenarios with fentanyl or any opioid overdose, and one of them is somebody who takes a dose, whether it’s a recreational dose, where they go to a period of unconsciousness. They are still breathing, they are still getting enough oxygen in, and eventually at some point, whether it’s two hours, five hours, or ten hours or more, they’ll wake up and they’re fine. At the other end of the spectrum is you have somebody that uses fentanyl at a higher dose, or a dose to which they’re not tolerant, where they can -- they can die, as you said, fairly quickly. There is a third category that’s in between that, where somebody has enough drug to render them unconscious, but where they don’t die immediately. They’re taken to an emergency room, their vital signs are not great, but they’re still breathing, they’re still technically alive, where that may be 24 hours after the event took place. They’re treated in a hospital, but they realize when they evaluate the patient fully that while they may not be suffering from an opioid intoxication anymore, because that state cannot be reversed by Narcan Naloxone, that that individual has brain damage and basically, that’s the primary reason why they’re still unconscious, is because they’ve suffered brain damage. And typically in those circumstances, they’re eventually removed from life-support and allowed to die.
Dr. Jones testified that if someone took fentanyl and was unconscious for 24 hours, he would suspect that they had taken another drug in addition to the fentanyl. It would be possible that it was solely due to fentanyl, but his opinion was that it would not likely to have been solely due to fentanyl, because he would expect that if a person was unrousable for that period of time, the 24 hours, it would be because there was brain damage involved, or another drug. Being unrousable for a period of 24 hours could be consistent with Dr. Jones’ opinion with ingesting fentanyl and Clonazepam.
Dr. Butler testified that there was no indication that Courtney Janes had suffered a brain injury or hypoxic brain injury.
There is no dispute that Courtney Janes was unconscious for a significant period of time. She was at Darcy Oake’s garage at approximately 9:30 pm on November 23, 2016, and she presented at the hospital at 11:35 pm on November 24, 2016. For much of the time in between, it appears that Courtney Janes was unconscious and this caused the Rhabdomyolysis that she suffered.
The issue is whether the furanylfentanyl or another drug in combination with the furanylfentanyl caused Courtney Janes to be unconscious for that period of time. One of the possibilities raised by the Defence is that Courtney Janes took Clonazepam in addition to the furanylfentanyl, which was an intervening act which broke the chain of causation.
The evidence at the trial was that Courtney Janes had a prescription for 90 pills of 1mg Clonazepam and 90 pills of .5mg of Clonazepam. Courtney Janes got a refill of her prescriptions of Clonazepam prior to going over to Darcy Oake’s house. Darcy Oake testified that Courtney Janes gave him 15 to 20 Clonazepam in exchange for the furanylfentanyl. When Courtney Janes was in the hospital, her medical records showed that she had a bottle of 90 1mg Clonazepam in her effects. It is not clear from the records whether anyone actually counted the pills or just recorded what was indicated on the label. The bottle of .5mg of Clonazepam was not among her effects.
Courtney Janes testified that she may have given her medications to her doctor or her boyfriend to throw out, as she did not want to take them anymore. She was not sure how the medication got disposed of, and it is not clear what happened to the bottle of .5mg Clonazepam.
If Courtney Janes also took another drug, like Clonazepam, then the question remains whether Darcy Oake providing furanylfentanyl to Courtney Janes was a significant contributing cause of the bodily harm she suffered. Based upon the evidence of Dr. Jones and Dr. Butler, there is a reasonable possibility that Courtney Janes took another drug, possibly Clonazepam, at some point either before or after she ingested the furanylfentanyl.
The evidence of Courtney Janes was that she had not taken any other drugs. But she also testified that when she went to Darcy Oake’s garage to do the furanylfentanyl, she “probably wasn’t sober”. Courtney Janes was not asked about what she meant by that or what she might have consumed, but it raises the possibility that Courtney Janes took something else prior to going to Darcy Oake’s house.
The evidence of both Dr. Butler and Dr. Jones appears to suggest that it was unlikely that the furanylfentanyl would cause an extended period of unconsciousness in the range of 24 hours. Dr. Jones allowed that it was possible, but viewed it as unlikely. Both doctors were of the opinion that Courtney Janes could have taken another drug, like Clonazepam, which would have added sedative effects. Dr. Jones’ opinion was that an extended period of unconsciousness of up to 24 hours was possible solely from the ingestion of furanylfentanyl, but unlikely. It was more likely that another drug, like Clonazepam, was co-ingested. The Clonazepam on its own, according to Dr. Jones, would have not had this effect on Courtney Janes. It would not have resulted in an extended period of unconsciousness.
As to whether it was reasonably foreseeable that Courtney Janes might ingest another drug, Darcy Oake knew Courtney Janes, and they had taken drugs together in the past. He knew she had a prescription for Clonazepam and that she had just re-filled it. Darcy Oake was concerned that Courtney Janes might take her other medications in addition to the furanylfentanyl, because he warned her not to take her other medications. He knew that it was a possibility that she could. He knew how powerful the furanylfentanyl was, based on his own experience, and he knew the effect the furanylfentanyl had on him. Courtney Janes left his garage with most of the Clonazepam after giving him 15 or 20 Clonazepam pills for the furanylfentanyl.
I conclude that it was objectively reasonably foreseeable that Courtney Janes might ingest another drug after having taken the furanylfentanyl. It is clear from the evidence that Courtney Janes did ingest furanylfentanyl. While there is a reasonable possibility that Courtney Janes also took Clonazepam or another sedative drug in addition to the furanylfentanyl, the furanylfentanyl remained a significant contributing cause of Courtney Janes’ lengthy period of unconsciousness and resulting Rhabdomyolysis. The Clonazepam would have added to the sedative effect of the furanylfentanyl, but as Dr. Jones testified, the furanylfentanyl always has to be significant in this scenario. Without the furanylfentanyl, but for her ingestion of the furanylfentanyl, Courtney Janes would have not experienced the extended period of unconsciousness.
Therefore, I conclude that the Crown has proven beyond a reasonable doubt that Darcy Oake provided furanylfentanyl to Courtney Janes and it was a significant contributing cause to the bodily harm Courtney Janes suffered, even if she had ingested another drug.
Therefore, for these reasons I find Darcy Oake guilty of:
Count 1, unlawfully importing furanylfentanyl into Canada;
Count 2, trafficking in furanylfentanyl;
Count 3, possession of furanylfentanyl for the purpose of trafficking; and
Count 4, criminal negligence causing bodily harm to Courtney Janes.
(PROCEEDINGS CONCLUDED)
CERTIFICATE OF TRANSCRIPT
Dated at the City of Toronto, in the Province of Ontario, this 1st day of June, 2020.
____________________________________
Kim Neeson
Principal