"Not his fault", but still his fault - Justice or Injustice?

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"Not his fault", but still his fault - Justice or Injustice?

Though this post references the opioid crises, it is not about the opioid crisis.  It is about what I perceive to be a terrible callousness in our justice system that has brought an otherwise good person to his knees.

I wish I had written about this sooner.  I was reminded about the terrible devastation caused by opioid addiction to somebody I know when CBC news posted information about a drug company executive bribing doctors to prescribe opioids.  I tracked-down the online article published by Reuters:


According to Reuters, “the founder of Insys Therapeutics Inc on Thursday became the highest-ranking pharmaceutical executive to be convicted in a case tied to the U.S. opioid crisis, when he and four colleagues were found guilty of participating in a scheme to bribe doctors to prescribe an addictive painkiller”.

opioid addiction began in the doctor's office

To be clear, I am not attaching this unethical behaviour to all doctors or business executives. Also, to be fair to the Inys Therapeautics executives prosecuted in this case, it appears at least part of their defence was employees were to blame, not them.  That may be true.  I make no comment about the quality of the verdict.  What I am thinking about is the incipient beginning of the opioid crisis, the narrative of today and the impact on an otherwise good person.

It is important to know that opioid’s, such as morphine, oxycodone and Fentanyl, are highly addictive.  Fentanyl is 100x stronger than morphine and not surprisingly, has been linked to thousands of drug overdose deaths in Canada.  It is also important to understand that there is good evidence to conclude that the genesis of the opioid crisis did not begin with the negligence of street chemists; it arguably began at doctor’s offices and hospitals across this Country.

The protagonist of today's blog is DT, a person directly impacted by opioid addiction triggered by the issuance of prescriptions by medical doctors.

In Law Society of Alberta v. D.T., [2015] LSDD 280, the opening remarks of the Hearing Committed highlight D.T.’s unfortunate situation:

“DT developed an addiction to painkillers. He injured his knee, sought treatment, and was legally prescribed potentially addictive opioid painkillers. During the 14-month wait for orthopaedic surgery and through no fault of his own, he developed what came to be diagnosed, and was described before us by the experts, as Substance Dependence disorder. After the surgery, DT’s pain continued to be controlled with legally prescribed opioids. Aware of the addiction, DT sought his doctor's advice, and was abruptly tapered off his opioid medication over a one-week period. That abrupt withdrawal heightened his addictive cravings. Soon after that, he was stabbed and beaten while defending a break-in by two men in his garage. He was again prescribed opioids for the pain. Shortly afterward, his prescription was again discontinued abruptly. He could not stay away from the painkillers”.

DT was a good man, a gentle soul, with a good job - a career.  It wasn’t his fault that he had a knee injury. It wasn’t his fault that medical professionals prescribed opioids prior to his knee surgery. It wasn’t his fault that he had to wait 14-months for medical treatment -- 14 months where his pain was controlled by highly dangerous and potentially addictive painkillers, prescribed by persons in a position of trust. 

Not surprisingly, DT’s pain needed to be controlled after the surgery. Doctors continued to prescribe opioids.  It wasn’t DT’s fault that he was the victim of a break and enter where he was “stabbed and beaten”.  What was the response to manage the pain caused by knife wounds inflicted to his body? Opioids. 

Not his fault

I am not making excuses for things that happened once the addiction had become unmanageable; but I do have some compassion.  To borrow the compassionate words of the dissenting Judge, Mr. Justice O’Faerrall from our Alberta Court of Appeal, [2013] A.J. No. 516: “DT not only had an addiction, he also had a history of depression which went back to his youth. Neither the addiction nor the depression was his fault”.

The operative words are “not his fault”.  I am left to wonder, if “not his fault”, then whose?

The arithmetic is easy. 

This man’s life didn’t spiral out of control because he started recreationally abusing opioids; it spiralled out of control as a result of a series of events that were “not his fault”.  It’s not his fault that he is human being -- a walking bundle of blood and bone, with hard wiring through his brain that was forever altered as a result of prescription medications.  It’s not his fault that he had history of mental illness (depression) and that he suffered a knee injury. It’s not his fault that the consistent response by medical professionals was to prescribe dangerous medication for a period upwards of 14 months while he awaited surgery. It’s not his fault that in Canada citizens need to wait 14 months (or more) for surgery and that during that waiting period, pain must be managed. It’s not his fault that he needed prescription drugs to help after the surgery and it’s not his fault that he was the victim of a violent crime, where he was stabbed. Finally, it’s not his fault that the medical response to treat his knife wounds was more addictive drugs.

Is it a really a surprise that DT became an addict?  

In declaring that DT’s situation should be a matter of public record, the majority of our Alberta Court of Appeal said: “addiction is not a mitigating factor for other crimes and is far from rare”.  I agree, addiction is far from rare; however, no matter you cast it, addiction is nevertheless an overwhelming attack on the mind and body -- an overpowering assault that diminishes a persons ability to exercise self control.   

I am left to wonder, if DT's addiction was “not his fault”, how could it not be a mitigating factor in sentencing?

To my understanding, DT lost his career -- one that had lasted at least two decades.  Indeed, he lost so much as a result of a cascading series of events that were “not his fault”. The response from the Crown was to seek a community jail sentence.  Prior to things happening that were “not his fault”, DT had no criminal record. 

When DT was given a second chance by a compassionate Provincial Court judge who clearly recognized that "that it was not his fault", Justice couldn't leave well enough alone.  Like it wasn't enough that DT's laundry was aired on the public record. Like it wasn't enough that must have suffered embarrassment in the presence of peers that he had practiced with for decades. Like it wasn't enough  that he was struggling with mental illness and diagnosed serious addiction issues.  Like it wasn't enough that he was the victim of crime. Our justice system decided that a second chance for this otherwise good man, in these unique circumstances, was not appropriate; so they appealed.

On appeal, the Crown sought jail. In stripping DT of his second chance, the response from the majority of the Alberta Court of Appeal was to declare, despite all of the evidence that it was “not his fault”, that addiction is not mitigating.  This leaves me to wonder whether some participants in criminal justice really care to understand addiction at all. Our Supreme Court of Canada has long recognized that sentencing must be "individualized" and that deference is owed to the sentencing judge. I am left to wonder whether these important principles were ever really considered in DT's case. 

can addiction ever be mitigating?

I understand that addiction “may” not be mitigating -- especially in circumstances where it was caused by recreational bad choices; but in a situation where the root cause can be traced to frailties in our medical system?   Do we not understand that the human body may become so addled by addiction that even the strongest human being cannot manage his or her cravings?  To blanket declare addiction is not mitigating is, in my view, not only a departure from reality but a disconnect from humanity.

Professionals may have a designation but they are no less human. DT was a professional.  He owned up to his mistakes. To my mind, that is what professionals do: they own up to their mistakes. DT owned up his in public forum. 

The Reuters article about Insys highlights that the opioid crisis was caused, at least in part, by greed in our medical system. 

To be clear, I don’t blame surgeons for prescribing opioids; for these medications certainly have a place in a hospital or treatment setting. What am I am concerned about is the narrative. If we ignore where the problem started, and lay addiction squarely and solely at the feet of the addict, then it's easy to coldly declare: "addiction is not mitigating". 

The Law Society Hearing committee recognized DT to be a "good lawyer" and that there is public interest in our society being represented by good lawyers. Though there are many good Calgary criminal lawyers, our bar is less without DT.  I have not spoken to him a long time, but I sincerely hope he is doing well.  In recent months and over the years our criminal bar has been shattered by the loss of good people.  Though DT may not be lost permanently, his loss is felt all the same.

David Chow

Calgary Drug Lawyer