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Social Justice: Bad facts make worse precedents

A recent Saskatchewan trial court decision, which found a drug dealer civilly liable for injuries 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 Bergen, 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 addictive and it’s sale was “for the purpose of making money but was also for the purpose of intentionally inflicting physical and mental suffering.”

When Davey refused to name an unknown drug supplier referred to in the statement of claim, the judge struck his statement of defence, leaving him undefended against Bergen’s suit.

Dare I say it, any teenager, let alone the young adult that Bergen was at the time, knows that the consumption of any illicit drug is not completely 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 responsibility for her previous bad choices.

I’m all for going after the money where profit is the motivating factor in the commission of an offence. With drug kingpins this is usually the case, while low-level dealers may be addicts themselves, 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 contrast to that collected by an individual plaintiff, could ostensibly be redirected towards programming for addicts.

In addition to the fact that Bergen clearly voluntarily assumed 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? Bergen committed a criminal act in purchasing and using the drug, and to suggest that she is not responsible for the ensuing 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 victimhood, 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 documented trails of human-rights abuses in their production and distribution.

And how about the families unwittingly living in the vicinity 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 apparently 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 trying 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 engaging in criminal activity expect even less protection?

“Buyer beware” probably applies nowhere more aptly than in the consumption 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 Conservative 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 responsible for our actions and addictions, we invite the abnegation of personal responsibility for those crucial initial choices - often taken by our youth.


Michelle Mann is a Toronto-based lawyer, writer, and consultant. Check out her web site at www.michellemann.ca or e-mail her at michelle@michelle

mann.ca

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