The Supreme Court of Canada in Ottawa in November, 2022.Sean Kilpatrick/The Canadian Press
The Ontario Crown might well have done the right, even necessary thing, in withdrawing 14 murder charges against Kenneth Law and agreeing to accept a guilty plea to 14 counts of assisted suicide. We don’t know what evidence they have. But the Crown owes the public an explanation of its actions.
We live in a world in which large numbers of vulnerable and traumatized people turn to online spaces for support or information, and stumble into extreme danger of all kinds.
The public interest in prosecuting Mr. Law to the full extent of the law, therefore, could hardly have been higher. Mr. Law is accused of providing a toxic substance online to 14 people – including two minors – who aimed to die by suicide. Separately, he is suspected of providing poisonous substances in 1,200 cases in 40 other countries.
Now a case that the Crown pitched as multiple murders has become one of illegally facilitating the personal choice to die. The difference is vast, and the penalties are far apart.
B.C. RCMP say they have an active probe into whether suicide deaths linked to Kenneth Law
Crown attorneys have wide discretion, and should; but they should be accountable for explaining their uses of it. An appropriate venue for the Crown to explain itself in the Law case is the court hearing scheduled for May 29, at which the plea agreement will be put on the record.
The Crown should should not offer up the usual boilerplate – “no reasonable prospect of conviction.” The public has a right to know what the Crown’s theory of the case was when Mr. Law was charged with first-degree murder late in 2023, and what evidence supported that theory. And when and why the Crown changed its mind about the strength of the murder case.
If it was primarily the court rulings in an unrelated case called B.F. (the Crown asked the Supreme Court to expedite its hearing), that too will require some explanation. Because it is hard to accept at face value that the Crown was bushwacked by rulings that set out how murder differs from assisted suicide. Neither of the two rulings in B.F. seemed terribly surprising.
If an accused “overbore the victim’s free will,” it suggests murder, Ontario’s top court said in BF in mid-2024. Last May, three Supreme Court judges put it this way in the same case: “Where the accused’s actions somehow actively undermined or overpowered the deceased’s autonomous choice whether to commit suicide,” it may be murder.
Novel, yes. But hard to foresee? No. The government of Canada, an intervener at the Supreme Court, argued for just that kind of approach, saying that otherwise, someone who even just opens a bottle of pills for someone who is suicidal, or who out of compassion helps a suffering family member end their life, could be found guilty of homicide. In short, the approach seems grounded in common sense and personal autonomy.
The question, then, was whether the Crown had evidence of manipulation of individuals who were vulnerable because of their age, mental state or other reasons. As Supreme Court Justice Andromache Karakatsanis asked during the hearing in B.F.: “What happens if someone gives a loaded gun, and then there’s some wavering,” and in response there’s “encouragement, or taunting?” Matthew Gourlay, B.F.’s counsel at that hearing, replied that it comes down to whose choice it is, and that bullying, threats or intimidation would mean the choice was not that of the person receiving the gun.
We’re left wondering whether the Crown decided late in the day it lacked evidence on Mr. Law’s conduct toward the 14 people. It was the Crown, after all, that raised expectations by bringing the first-degree murder charges to this point. Were they wrong to have done so? Were they merely saving a weak case now by accepting a guilty plea to lesser charges? Did Mr. Law’s adept legal counsel, the same Mr. Gourlay who represented B.F., persuade them they would lose? Did they blink? Were there no cases at all, not even one, with enough evidence to make a plausible argument for murder?
Members of the legal community have said officials should refrain from criticizing the justice system, for fear of harming public confidence. Yet they have little to say about the active steps that should be taken to shore up confidence. This includes steps toward transparency in Crown decision-making.
The public should not have to take it on faith that the Crown did the right thing throughout. The Crown should explain, plainly, why it changed course.