After a long hiatus, Legally Brown’s resident torts junkie is back at it again. The topic of discussion for this post is Mustapha v Culligan (2008). While this case is on the older side, it’s one hell of a precedent. What are the facts? Mr. Mustapha purchased a bottle of drinking water (the kind that you can use for at-home water dispensers but will probably take your back out lifting it) from Culligan. Unbeknownst to Mr. Mustapha, this bottle had dead mosquitos floating around in it (or more accurately, one mosquito and half of another). Unlike the average person who may have gone back to the store demanding a refund, Mr. Mustapha went to court asking for $341,775. While it may seem ridiculous that something as simple as this, which could be taken care of through a customer complaint line or a nasty Google Review, to be taken to court, this was not a “frivolous” matter to Mr. Mustapha. While Mr. Mustapha did not consume the water, the sight of the mosquitos triggered a whole host of psychiatric issues including major depression, anxiety, specific phobias and obsessional thoughts. Oh, and the most quoted side effect - the negative impact on his sex life. The media has sensationalized this case however, as unusual as this case is, it is important to remember that the incident had a very real impact on Mr. Mustapha. While Mr. Mustapha was successful in achieving damages at the court of first instance, he was unable to achieve the same results on appeal. Culligan appealed to the Ontario Court of Appeal where the court found in their favour. The court noted two flaws in the judgment of the trial judge - his failure to incorporate an objective component to the duty of care and opting for the standard of possibility rather than reasonable foreseeability. This case eventually travelled to the Supreme Court where in a 9-0 decision, Mr. Mustapha lost the appeal. To briefly put on my constitutional scholar hat, the unanimous decision speaks volumes. The court is unified on the stance that “the law of tort imposes an obligation to compensate for any harm done on the basis of reasonable foresight, not as insurance.” The debate about the prevalence of tort law’s distinction between psychiatric injury and mental injury is invoked in Mustapha. Some argue that despite the Supreme Court’s statement that “the distinction between physical and mental injury is elusive and arguably artificial in the context of tort,” they adhered to the distinction by failing to apply the but-for test. Whereas the but-for test is generally respected vis-a-vis physical injury where the plaintiff can claim damages if they are able to demonstrate that their pre-existing disposition (thin skull) to a certain injury would not have materialized had it not been for the defendant’s negligence, cases like Mustapha show that the rule is not readily transferred in the realm of psychiatric injury. From my understanding, Mr. Mustapha failed to establish a duty of care, not causation. The Supreme Court held that there was no reasonable foreseeability that an ordinary person would suffer the psychiatric damage that Mr. Mustapha did. There was no question about causation - the Supreme Court acknowledged that Culligan’s negligence did in fact cause the damage to Mr. Mustapha. Perhaps it’s an overly artificial distinction but from my amateur understanding of tort law, there is a structure to a negligence claim that must be satisfied to achieve damages. The structure is as follows: an act by the defendant, duty of care, carelessness, causation, remoteness and harm. The issue examined in detail in Mustapha concerns duty of care, not causation. Duty of care and remoteness pertain to legal causation rather than the strict factual causation that is informed by the but-for test. In no way do I intend to detract from arguments that claim that the tort law regime differentiates between psychiatric and physical injury through this post. I do believe there is a real double standard when it comes to litigating psychiatric injury. I just don’t think Mustapha is the right case to hang these arguments on. By: Veena Ganesarasa
0 Comments
When the news broke out about the R v Chan & R v Sullivan appeals, I was furious to say the least. I could not believe that the Ontario Court of Appeal (ONCA) would set back the women/children’s rights movement by enabling defendants to use intoxication as a defence to sexual assault. However, these cases were not about sexual assaults & the rulings were more complicated than what was depicted by news outlets. What happened here is just another example of irresponsible media reporting - one that I, like the rest of Ontario, fell victim to. After coming to this realization (largely owing to Stephanie Guiseppe’s tweets & our in-house crim law expert, Samantha Heggart), I knew I had to write on this to clarify what the decisions are actually about. If a person like me, who is more informed about criminal law than the layperson, could be misled about the impact of Chan and Sullivan on the law then I can only imagine how many others are still mistaken. Automatism Before getting into the details of the cases, a quick crash course on the not criminally responsible (NCR) regime in Canada will help situate the discussion on Chan and Sullivan. Matt C. Zaitchik, PhD, states that the “term automatism refers to motor behavior that is automatic, undirected, and not consciously controlled.” Under the NCR regime, there are two types of automatism - mental disorder (MD) automatism and non-mental disorder (NMD) automatism. A defence of MD automatism negates the mens rea element as the defendant could not appreciate the consequences of their actions owing to their mental disorder. A defence of NMD automatism nullifies the actus reus element by proving that the actions of the defendant were not voluntary. There are two subbranches in NMD - insane automatism, when the state of involuntariness is brought on by a mental disorder and non-insane automatism, when there is an external trigger causing the automatism. Both Chan and Sullivan are trying to raise a defence of non-insane automatism. There is a preference for raising a NMD defence. While three dispositions are available for a successful MD defence - absolute discharge, conditional discharge or detention in a psychiatric facility, a successful NMD defence results in an acquittal. At the trial level Thomas Chan was under the influence of magic mushrooms when he attacked his father and his father’s partner, Lynn Witteveen. His father died from the attack and Ms. Witteveen suffered severe injuries. Chan was charged with murder and attempted murder. David Sullivan was an addict of the prescription drug, Wellbutrin. He overdosed on the drug in a suicide attempt. Instead, the drug propelled him into a state of automatism in which he stabbed his mother repeatedly. At court, Chan first tried to raise a defence under section 16 of the Criminal Code, claiming that he could not be held criminally responsible for an act committed while suffering from a mental disorder. Justice Boswell of the Ontario Superior Court of Justice (OSCJ) rejected this defence because at the time of the offence, Chan was in a state of toxic psychosis, not a mental disorder. Afterwards, Chan applied for an order to get section 33.1 of the Code struck down on the basis that it violated s.7 and s.11(d) of the Charter. Section 33.1 of the Criminal Code was enacted in 1995 as Parliament’s response to the Daviault decision. In Daviault, the defendant was an alcoholic who sexually assaulted an elderly and disabled woman after becoming extremely intoxicated. The Supreme Court of Canada (SCC) found that there is an exception to the prohibition of using self-intoxication as a defence to general intent crimes per Leary v The Queen (1978). Jordan Gold from Robichaud’s explains the distinction between crimes of general intent and specific intent well. Gold stated that while specific intent crimes require a high level of intentionality, for crimes of general intent “the court will presume that a person intends the direct consequences of their actions.” Sexual assault is a crime of general intent. The SCC held that a person cannot be held criminally responsible if they can prove, on a balance of probabilities, that their self-intoxication placed them in a state of automatism, a state of absent awareness. In such a state, they cannot satisfy the voluntariness element of the actus reus. Chan challenged the constitutionality of section 33.1, an extremely controversial provision. He had two arguments to support this contention. First, the court should bind itself to its former ruling in R v Dunn. In Dunn, the ONSJ implied that section 33.1 was unconstitutional. The rules of stare decisis however state that courts are only bound by decisions of higher level courts, even though decisions of courts of similar status or the same court can be persuasive. Second, Chan argued that the current court should strike the section down for being unconstitutional vis-a-vis his section 7 right to life, liberty and security of the person and his section 11(d) right to full answer and defence. Justice Boswell found that while section 33.1 does breach these constitutional rights, the section is saved by section 1. Sullivan first attempted to argue that section 33.1 did not apply to him because his intoxication was not voluntary - he ingested the drug in a suicide attempt, not to get high. After the court rejected his argument, he moved forward with an argument similar to that of Chan’s. Ontario Court of Appeal Given the similarities between these two cases, two men who became “automatons” after ingesting psychedelic drugs, committed violent crimes and are now challenging their convictions on the basis that section 33.1 unconstitutionally deprives them of the non-mental disorder automatism defence, the appeals were heard together. The ONCA, in a 3-0 decision, struck down section 33.1. In establishing the prima facie breach of Charter rights, the court identified three infringements: the voluntariness breach, the improper substitution breach and the mens rea breach. The voluntariness breach had been discussed previously. The improper substitution breach of section 11(d) refers to section 33.1 substituting voluntary intoxication for the mens rea element - it presumes that if someone voluntarily gets drunk/high and commits a crime, then they satisfy the mental requirement. This in violation of a defendant’s section 11(d) right to be presumed innocent until proven guilty. In R v Creighton, the constitutional minimum of fault level for criminal offences is penal negligence which is a “marked departure from the standard of a reasonable person.” While the Crown purported that section 33.1 meets this minimum stand of penal negligence, it is difficult to establish foreseeability between voluntary intoxication and violence. In reevaluating section 33.1 with the Oakes test, the ONCA came to the conclusion that the law fails at minimal impairment and proportionality. Lessons learned This incident has been an eye opening experience. It is clear that regardless of how reputable a news outlet may be, critical reading and research are musts. Although the decision can impact sexual assault cases, as automatism triggered by self-intoxication is now a valid defence, the defence of automatism is rarely raised and even more rarely is successful. You can read the decision here: https://www.ontariocourts.ca/decisions/2020/2020ONCA0333.htm By: Veena Ganesarasa Social distancing has shown to be an effective tactic at flattening the curve across jurisdictions. However, persuading entire populations to abandon their daily lives and routines to isolate in their homes is not an easy feat. Rather than solely relying on public service announcements to convince citizens to respect stay-at-home orders, the government has relied on fines and charges as enforcement mechanisms. Fines & charges The fines are administered through city by-laws, meaning that there isn’t standardization across the country for violating stay-at-home orders. Cities have no constitutional status - they are “creatures of the state” or the creating province. The powers that cities have are flowed through to them by their respective provinces. The provinces are enforcing their stay-at-home orders through public health acts. If a law in pith and substance pertains to their constitutional power over healthcare and its criminal law implications are incidental (as criminal law falls solely within the federal jurisdiction), then the law can still be deemed constitutional. The stay-at-home orders likely fall under civil rights. While Prime Minister Trudeau has publicly stated the possibility of implementing the Emergencies Act to enforce the stay-at-home orders, the government has yet to do so - likely due to the high controversiality of the Act. The fragmented regulatory environment, owing to the provinces and cities spearheading enforcement, combined with the need for timely action, raise concerns about inconsistencies. First, the amount and administration of fines vary depending on the city. In Toronto, fines can range from $750 to $10,000 for individuals and up to $10 million for businesses. These are issued by police officers. Originally in Montreal, infractions were reported by police officers and it was within the discretion of Crown Prosecutors to charge the individuals between $1,000 to $6,000. By early April, Montreal modified its approach, authorizing police officers to lay charges. The range in fine amounts gives law enforcement considerable discretion in charging. Second, there are differences in what is considered a violation of the stay-at-home orders. In Calgary, only those who were blatantly in violation of the stay-at-home orders, for example street preachers, have been charged. In contrast, Melissa Leblanc of Montreal was fined $1,546 for having friends visit her for her birthday even though they were in their cars, maintaining the advised 2 metre distance. These jurisdictional differences in what is considered a violation seem arbitrary given that stay-at-home orders fall within the scope of criminal law, as they satisfy the Margarine Reference triple P test for criminal law. According to the Margarine Re, a law is deemed to be a criminal law when it has a Prohibition, Penalty (fine, imprisonment) and a Public Purpose. The stay at home order constitutes a prohibition on certain activities, accompanied with penal sanctions, for a public purpose. As such, there seems to be some rationale in establishing a national standard for the criminal sanctions associated with violations of stay-at-home orders. Furthermore, the laws around violations are quickly changing within jurisdictions as cities and provinces are trying to respond to the progression of COVID which creates confusion around what is lawful. As Abby Deshman from the Canadian Civil Liberties Association explains “ultimately when the law is unclear it’s left up to frontline law enforcement to decide who and when and how they will enforce those vague provisions and that opens the door to discriminatory enforcement and arbitrary decision-making.” Impact on minorities Mapping the Pandemic, a project by Alex Luscombe and Alexander McClelland from the University of Toronto, plotted reported infractions between April 4-13 which they collected from media articles, police releases and social media posts. Their study shows that the ticketing disproportionately affects individuals who do not have the ability to comfortably self-isolate due to their living conditions or have not been effectively informed about the spread of COVID-19. Given the systemic barriers faced by people of colour in housing, employment and various aspects of life, it takes no stretch of imagination to visualize who these individuals are. Privacy On April 6th, the Ontario government announced that they will be sharing information on COVID-19 positive individuals with first responders, including police, firefighters and paramedics. This information includes the names, date of birth and addresses of the patients. The CCLA states that this increased access to healthcare information, which has traditionally been heavily protected, raises concerns for privacy. As a greater number of individuals are now accessing this information, there is a heightened risk of privacy breaches and hacking. As CCLA recognizes, the benefits of this increased access are not clear given that testing information is often outdated. What is the public policy rationale behind the expansion of access if the benefits do not warrant it? So what? From reviewing the changing to policing and enforcement in light of COVID, it has become evident that it is imbued with vagueness and uncertainty. There needs to be change in the regulatory environment to make the rights and obligations of citizens clear. By: Veena Ganesarasa |
Legally BrownThis page is dedicated to providing insights on current events and reflecting on recent legal developments. Archives
January 2021
Categories
All
|