DOPER'S GALL SETS PUZZLING PRECEDENT

Could Legal Tactic Inspire Others and Put Drug Dealers Out of Business?

On May 5, 2004, a 19-year-old from Biggar, Sask., named Sandra Bergen
paid a visit to the home of her former classmate, Clinton Davey. The
two had known each other since kindergarten. Bergen was a
self-described alcohol and drug abuser who had started using crystal
methamphetamine around the time she turned 18. On that night in May,
Bergen claims, Davey sold her some meth for $40. Davey claims there
was no sale, that they shared the drugs, as friends would.

Whatever the nature of the transaction, the results were nearly
fatal. According to court documents, Bergen suffered a massive heart
attack and eventually slipped into a coma. She developed pneumonia
and spent nine days in intensive care. She claims she still suffers
from heart damage and mental distress caused by the overdose, though
she no longer uses drugs.

So Bergen and her parents took Davey to court. They sued him for
general, special and punitive damages. They also sued his
grandmother, Dalis, alleging she conspired with her grandson to
addict and injure Bergen because she knew her grandson was selling
meth from her home. And they went one step further and sued Davey's
anonymous drug supplier for his role in the affair.

Bergen went to court -- and won.

It wasn't a straightforward victory. The legal issues raised by the
Bergens' lawsuit were never hashed out in court.

Clinton Davey wouldn't provide the name of his drug supplier; he
claimed he couldn't remember.

As a result, the judge struck out Davey's entire statement of
defence. In law, it was as if he'd offered no defence at all -- which
amounted to an effective admission of liability. The judge has yet to
award any damages to the Bergen family, so it's too soon to know what
they have won monetarily.

Nonetheless, the Bergens are claiming this as a moral victory, one
which could set a precedent for others who want to sue drug dealers.

At first blush, a legal tactic that could help put dealers out of
business, that could hold them accountable for the human costs of
their dirty trade, has an appealing sound.

But Bergen wasn't a minor. She was an adult and had been for a year.
Nor was she a meth neophyte -- she'd used the drug many times before
and had plenty of experience with its impact on the brain and body.
She was surely aware that there was no such thing as a "safe" dose of
crystal meth, that it's poison by its very nature.

For her to claim now that Davey and his grandmother conspired against
her -- when she, an admitted addict, chose to buy and use an illegal
drug -- takes some gall.

The irony is rich: She broke the law, yet now she's turning to the
law for financial compensation.

And though Bergen's case was never fully argued in court, legal
precedent suggests the law may have been on her side. Does a drug
dealer owe a duty of care to his customers, just as a bar owner owes
a duty of care to his clients?

"The answer, based on the current state of the law, is not obviously
no," says Russ Brown, a professor of tort law at the University of Alberta.

"Since the 1980s, the Supreme Court of Canada has taken a number of
doctrinal shifts that tend in general to favour plaintiffs. As
amazing as it might seem, I don't see this case as a sure loser."

There was a time, says Brown, when Canadian courts generally found
that plaintiffs who had made a "voluntary assumption of risk" didn't
win at trial. In other words, if you chose to get into a car with an
impaired driver, you couldn't receive damages if there were an
accident. But in recent years, he says, court decisions have
drastically watered down that defence.

In addition, says Brown, the Supreme Court made a landmark decision,
Hall vs. Hebert in 1993, in which it ruled that someone who was
committing an illegal act could sue for damages, even if they were
injured as a result of their own illegal act. The case involved a
drunken young man in British Columbia, who was injured when the car
he was driving rolled. The court allowed the driver to sue his
friend, who owned the car, arguing that the owner owed a duty of care
not to let his drunken buddy take the wheel.

Until 1993, the old common law principle, ex turpi causa non oritur
actio -- from a dishonourable cause, an action does not arise --
effectively meant one criminal couldn't sue another for damages.
Since Hall vs. Hebert, Canadian courts have drifted away from that
principle, to such an extent that Bergen might have won her case even
if Davey's defence hadn't been struck down.

Because the judge didn't rule on the substantive legal issues in the
Bergen case, it doesn't create much of a legal precedent. But it will
set a social precedent -- the success of the lawsuit is bound to
inspire others. And perhaps that's not a bad thing.

Perhaps such suits will force our courts, and the rest of us, to take
a long, hard look at the way tort law is evolving. We surely don't
want Canada to become as ridiculously litigious as the United States,
where it seems everyone sues everybody for everything and no one
assumes responsibility for his or her poor decisions. We need a
little room for common sense, and personal accountability. Otherwise,
we run the risk of infantalizing our society to the point where we
slough off the blame for our mistakes onto whomever is handy.

If we want to insist that drug dealers owe the same duties of care to
their customers as legitimate business operators, we should legalize
and regulate the sale of drugs, test them for quality, eliminate the
criminal black market and get serious about treating drug addiction
as a health issue.

But until we're ready to take that public policy leap, let's not
embrace the hypocrisy of dopers suing dealers and call it progress.