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.