Law Times

www.lawtimesnews.com Law Times / February 11/18, 2008 Page 7 Bad facts make worse precedents A recent Saskatchewan trial court decision, which found a drug dealer civilly liable for in- juries suffered by a young woman who overdosed on crystal methamphetamine he provided, brings to mind the old anecdote "bad facts make bad law." Or, even better, "bad facts make worse precedents." The plaintiff, Sandra Ber- gen, 23, and her family sued Clinton Davey after a 2004 crystal-meth-fuelled heart attack left her in a coma for 11 days, with a lasting heart condition. A sympathetic plaintiff (and addict), Bergen said she was using at the time to calm anxious feelings about her testimony as a victim in an upcoming sexual assault trial. Bergen argued that Davey knew the drug was highly ad- dictive and it's sale was "for the purpose of making money but was also for the purpose of intentionally inflicting physi- cal and mental suffering." When Davey refused to name an unknown drug sup- plier referred to in the state- ment of claim, the judge struck his statement of de- fence, leaving him undefend- ed against Bergen's suit. Dare I say it, any teenag- er, let alone the young adult that Bergen was at the time, knows that the consumption of any illicit drug is not com- pletely safe and that certain drugs, including crystal meth, are highly addictive. Now a recovered addict, she deserves credit for kicking it, and has perhaps mitigated her damages as best she could, but this does not abdicate re- sponsibility for her previous bad choices. I'm all for going after the money where profit is the motivating factor in the com- mission of an offence. With drug kingpins this is usu- ally the case, while low-level dealers may be addicts them- selves, consuming much of their profit. But I thought this kind of thing is what the proceeds of crime legislation is for. Money collected by the state, in con- trast to that collected by an individual plaintiff, could os- tensibly be redirected towards programming for addicts. In addition to the fact that Bergen clearly voluntarily as- sumed risk, because even as an addict there had to be a first-time usage, I thought that as a general rule civil law did not intervene in cases of illegality. Aren't illegal contracts unenforceable, for example? And doesn't equity require clean hands? Apparently, Bergen has said that she hopes to inspire others to sue drug dealers who profit from addicts. But what kind of message does this lawsuit send? Ber- gen committed a criminal act in purchasing and using the drug, and to suggest that she is not responsible for the ensu- ing harsh results is to suggest to youth they are the victims of dealers rather than culpable active decision-makers in their choice to use or not. While on the topic of vic- timhood, let's consider the chain of victims fuelled by the buyer, particularly of some drugs. In the case of cocaine and marijuana from some countries, there are docu- mented trails of human-rights abuses in their production and distribution. And how about the families unwittingly living in the vicin- ity of the crystal meth lab, a pretty high-risk cookery? Recall that, much like prostitution, there is no drug- trafficking business without the buyer. It strikes even a bleeding heart like me that there is an ap- parently snowballing absence of personal responsibility in our culture. While maybe not criminal activities, this lawsuit brings to mind gambling and tobacco lawsuits, along with the thankfully moot obesity lawsuits out of the U.S. Gamblers suing casinos and the government for facilitating their addiction, smokers suing companies for the addictive nature of cigarettes, and, in the U.S., obese consumers try- ing unsuccessfully to sue fast food companies over their health problems. Just how paternalistic do we want our society to be? Is it the place of civil law to protect people from their own excesses? And shouldn't an individual engag- ing in criminal activity expect even less protection? "Buyer beware" prob- ably applies nowhere more aptly than in the con- sumption of illegal drugs. Crystal meth is surely proving to be a scourge, particularly in the Prairie provinces. Statistics Canada estimates crystal meth offences increased by eight per cent last year. Indeed, it is one of the drugs that the Conser- vative government hopes to hit hard with the anticipated passage of bill C-26. And while I know I shouldn't get too excited about a trial court default decision, this one sends a message that might ultimately do more harm than good to efforts to reign in drug usage across the country. By suggesting that others are legally and ethically re- sponsible for our actions and addictions, we invite the ab- negation of personal respon- sibility for those crucial initial choices — often taken by our youth. Michelle Mann is a Toronto- based lawyer, writer, and con- sultant. Check out her web site at www.michellemann.ca or e- mail her at michelle@michelle mann.ca Ego isn't enough reason P rogressive Conserva- tive John Tory gives an interesting response as to why he wants to stay on in the generally thankless task of heading a political party that got shellacked in the Oct. 10 provincial election. "I'm fighting like hell to keep my job, because I think I can do it best and I can be a better pre- mier than [Dalton McGuinty]," he says in an interview. Or, in a word: ego. Tory thinks he lost to the lesser man in an unfair election cam- paign. He wants a second chance, so he can reverse history. Not that there's anything wrong with ego in politics. Without a healthy dose of be- lief in one's self and one's abili- ties, a person isn't going to sur- vive very long in the blood sport that is politics. But it hardly sounds like a good enough reason on its own to vote against holding a leadership contest when the issue comes up for review at the party's covention in London on Feb. 22 and 23. It is also true that Tory has ad- mitted that promising to ex tend funding to faith-based schools was a mistake, although not because it was a bad idea, but because of how the Liberals were able to use it as club to destroy his campaign. And Tory has also accepted blame for organizational short- comings in the campaign, of which there were many. But the organizers of the an- ti-Tory 'Grassroots PC,' which wants a leadership race, point to those same facts to make their own argument. "It was the leader, not the is- sue" that led the PCs down to defeat, argues a pamphlet from former PC party president Rue- ben Devlin and former MPP Bart Maves. "Despite the certainty of a fixed election date, we went into the last election with an embarrassing lack of organiza- tion and readiness at the central campaign and a lack of support for the local riding level," the document reads. Moreover, a Tory who was "overconfident in his own judg- ment" totally misread public hostility to faith-based school funding and underestimated the Liberal skill at corralling the bigot vote. Lastly, there is doubt about To- ry's ability to build a strong sup- porting team around him. So the battle lines appear drawn over whether, in essence, John Tory is up to the job. Most observers believe he'll have no trouble winning the 50- per-cent-plus-one of the vote that Tory notes is all the party constitution requires for him to stay as leader. But will that be enough? When Conservatives meet they invariably bring up the 1983 Joe Clark resignation, when he won "only" 66.9 per cent of the review vote, despite the rules saying half plus one was enough. Clark apparently felt he needed 75 per cent in order to have the credibility to avoid a new leader- ship race. One suspects Tory's vote num- bers will be subject to a simi- lar kind of subjective parsing, with the decision on whether he achieved an adequate winning margin being partly decided by Tory himself and partly by a com- bination of media comment and internal party judgment. Grassroots PC implies Tory needs at least 80 per cent sup- port. Mind you, there are two other elements certain to have some in- fluence on the numbers, the first of which favours Tory, and that is the lack of an obvious challenger for his position. While many of the Grassroots PC people belong to the Jim Fla- herty wing of the party, no one seriously expects Flaherty to give up the perks of power in Ottawa to return to run the oppositioon in Ontario. Only two names in the cur- rent caucus are seriously bandied about as having leadership am- bitions: former cabinet minister Tim Hudak from the Niagara peninsula, and newcomer (and Flaherty's wife) Christine Elliot from Durham region. But neither is a declared can- didate, unlike in the Clark race, where Brian Mulroney from the beginning made no secret of his desire to dump Joe. The second element, on the other hand, favours the anti-Tory insurgents. There is a sense inside the par- ty that Tory is wrongly distancing himself from the accomplish- ments of the Mike Harris legacy and allowing the Liberals to smear and demonize the highly success- ful record of the PC campaign platform laid out in the Common Sense Revolution. Why shouldn't the PCs be proud of having taken a million lower-income Ontarians off the tax rolls while the Liberals added hundreds of thousands with their inequitable and discriminatory new health tax? Or why shouldn't the PCs note that when McGuinty brags about 400,000 new jobs being created during his first mandate that Mike Harris almost doubled that number? And so on. It may be that irritation at Tory for running away from Har- ris, and in the process having dif- ficulty in distinguishing himself otherwise from the Liberals, will translate into enough convention votes to give him trouble. Derek Nelson is a freelance writer who spent 19 years at Queen's Park. His e-mail is jugurtha@rogers.com COMMENT Social Justice By Michelle Mann Inside Queen's Park By Derek Nelson LT LT *Pages 1-16.indd 7 7/18/08 12:45:27 PM

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