Conduct Unbecoming

A Tribunal Hearing Division of the Law Society of Upper Canada sanctioned an attorney who had procured heroin for a friend. The friend died from a self-injected overdose.

David A. Wright (for the panel):– Sarah Jackson, the Lawyer, admits through an agreed statement of facts that she committed professional misconduct when she did not report various criminal charges to the Law Society in 2012 and 2013. She also admits that she engaged in conduct unbecoming a lawyer in January 2013 when she facilitated the acquisition and use of heroin by EC, who died of an overdose on the night she assisted him in getting drugs.

Ms. Jackson, who is in her late 30s and was called to the bar in 2003, has not had an active licence to practise law since January of 2013. From January to August 2013, her status was retired or not working. She was administratively suspended in August 2013. On February 5, 2014, she signed an undertaking not to practise law until these discipline proceedings were completed.

The parties made a joint submission for a penalty of a suspension of eight months, retroactively commencing on May 27, 2016. The proposed order also contained terms that Ms. Jackson not return to practice until a medical practitioner chosen by the Law Society confirmed her ability to meet her obligations as a lawyer and that she pay costs of $1,000. We accepted the joint submission as reasonable and made the requested order, with reasons to follow. These are our reasons.

The story

Ms. Jackson initially met EC when she was 13 or 14 and they were going to school in Oshawa. They later became closer friends when Ms. Jackson was studying law. They lost touch around 2003 but became reacquainted in early January 2013.

Both Ms. Jackson and EC had experience with non-prescription drugs. Ms. Jackson had previously used heroin on a regular basis but had stopped for over a year. EC had never taken heroin but was eager to try it. According to Ms. Jackson, EC asked her several times over a couple of weeks if she knew how to get heroin. She first refused but later agreed to help him get the drug.

On January 19, 2013, Ms. Jackson helped arrange for EC to buy heroin. He received half a gram and then she brought him to her home. EC had all the necessary equipment to prepare and inject the heroin: a needle, tie and spoon.

Ms. Jackson believed that 1/6 of a gram of heroin would be a safe amount for anyone. When she was using heroin, with her tolerance, she could inject up to two grams per day. When he asked her how much heroin he should inject, she suggested “…something small since he had not done it before” and divided the half-gram into three doses.

EC tried to prepare the first dose but did not do it right and the dose was unusable. He asked Ms. Jackson to prepare the second dose, which she did and injected it into his arm. After the injection, he tidied her kitchen and fed her plants. They later sat and talked and listened to music. There was no indication anything was wrong.

Later, EC asked Ms. Jackson if she thought he was ready for another dose. She said that “…if that’s what he thought, that he thought he was ready, he didn’t look bad or anything…” EC injected the heroin himself. Sometime after midnight, he became drowsy. Ms. Jackson put on a movie and EC went to sleep. She stayed with him for about half an hour and then did other things.

The next morning, Ms. Jackson discovered that EC had died. She called 911. She was charged with manslaughter on May 8, 2013. She was incarcerated from the date of her arrest until she was acquitted on May 30, 2014.

Ms. Jackson was acquitted of manslaughter. The trial judge found that Ms. Jackson’s actions in arranging for EC to buy the heroin, dividing it into three doses and injecting him with the second dose constituted the offence of trafficking (she was not charged with this offence). He found that none of these actions caused his death. He decided that EC’s self-injection of the third dose severed “any causal link between the accused’s unlawful act of trafficking and the unfortunate death of the deceased.” Therefore, she was not guilty of manslaughter.

The trial judge also found that Ms. Jackson was not guilty of criminal negligence causing death. It had not been shown that she showed a wanton disregard for EC’s safety, since he did not seem to be in distress or suffering from an overdose, and she checked on him several times after the injection. The judge emphasized that it was EC who was “…persistent in his quest to inject heroin…” and wore Ms. Jackson down until she got it for him.

 Conclusion

Given the length of her undertaking not to practise, it is not unreasonable for a portion of the suspension to be retroactive: see, by analogy, Law Society of Upper Canada v. Atkinson, File No. LCN37/13 (June 17, 2013, unreported), summarized in Law Society of Upper Canada v. Drabinsky, 2014 ONLSTH 139 (CanLII) at para. 59.

Because of the nature of the events and Ms. Jackson’s admissions of drug use, it is appropriate to require a medical examination before she returns to active practice, to ensure that she is able to serve the public.

For these reasons, we agreed with the parties that the joint submission was reasonable, promoting specific and general deterrence, rehabilitation and ensuring the protection of the public. The costs proposed, in the amount of $1,000, are also reasonable given the circumstances, notably Ms. Jackson’s obviously limited income.

(Mike Frisch)