The top court is considering whether an Ontario judge erred by distinguishing between charges of murder and charges of aiding suicide.Amber Bracken/Reuters
The Supreme Court of Canada has heard arguments about whether police should be able to lay murder charges against a suspect who is also charged with assisting in the suicide of that same victim.
Thursday’s hearing is expected to affect a separate case, the looming high-profile trial scheduled for next year of Kenneth Law, a Mississauga man charged with first-degree murder of 14 people and also for aiding the suicides of those people.
Mr. Law is accused of using the internet to sell a salt compound fatal to scores of people who planned to use it to kill themselves. His lawyer said he plans to plead not guilty to all charges.
The Supreme Court hearing centred on the case of a nurse who, in 2019, injected lethal levels of insulin into herself, her mother and her 19-month-old daughter. A suicide note was found at the scene, but all three survived and the nurse was convicted of two counts of attempted murder.
In the Ontario Court of Appeal ruling from last June, a three-judge panel ruled that charges of aiding suicide and murder cannot be laid for the same underlying offence. The ruling said the act of assisting suicide may only evolve into a murder charge when prosecutors can prove that an accused “overbore the victim‘s free will.”
Prosecutors representing the Attorney-General of Ontario sought an expedited Supreme Court hearing in the wake of that decision, claiming many murder cases could be imperilled, including the one against Mr. Law.
During Thursday’s hearing, Ontario Crown Katie Doherty said prosecutors will be at disadvantage in laying murder charges in such cases if they are forced to figure out how a dead person’s will was overborne by someone else.
“What we need to keep the focus on is the state of mind of the accused,” she told the Supreme Court. “The offence isn’t making someone suicidal – it’s causing their death.”
But lawyer Matthew Gourlay, who represents the nurse, told the justices that “there is no such thing in Canadian law as a single death that is both a murder and a suicide.”
Mr. Gourlay, who is also representing Mr. Law, added that Crown prosecutors have never proven such a case in Canada.
Mr. Law has been jailed for the past two years after police alleged he shipped hundreds of suspicious packages to more than 40 countries, as well as to the 14 people in Canada he is accused of murdering.
If the Supreme Court upholds the Ontario Court of Appeal in the nurse’s case, it could have a dramatic effect on Mr. Law’s case. It could mean that the 14 murder charges could only be viable if police and prosecutors have proof that Mr. Law “overbore the free will” of those victims who were discovered dead in Ontario cities ranging from London to Thunder Bay.
Mr. Law faces a maximum penalty of 14 years in a penitentiary if convicted on assisting suicide. He faces a life sentence if he is found guilty of murder.
The Supreme Court proceedings were watched by Inspector Simon James, the York Regional Police investigator who led a Greater Toronto Area task force probing Mr. Law’s activities.
“We wanted to attend and see what’s happening,” Insp. James told The Globe and Mail outside the courtroom.
During the three-hour hearing, the justices questioned whether clear lines could, or should, be drawn by any court between murder and aiding suicide.
These questions piqued the curiosity of Justice Andromache Karakatsanis, who wrote a foundational ruling on the causality of homicide in 2012.
“So what if you gave a gun to someone who has expressed a view that this is something they wanted to do?” she asked the room. “That you provide the gun at the time you know they are particularly vulnerable and at a particular period of depression?”
Mr. Gourlay replied that such a crime could only be charged as aiding suicide – and not murder – as “long as it can be said, in fact of the law, to be the independent decision, the actual choice of the suicidal person.”