The Supreme Court of Canada is seen, January 16, 2020 in Ottawa. Prosecutors in the Kenneth Law case are asking the Supreme Court to prioritize reviewing a ruling that could affect their case against Kenneth Law.Adrian Wyld/The Canadian Press
Prosecutors are asking the Supreme Court of Canada to urgently review a recent Ontario Appeal Court decision that they say could jeopardize the prosecution of Kenneth Law, who faces more than a dozen murder charges over allegations that he sold a lethal substance online to suicidal people.
Mr. Law was arrested last year in Mississauga and is awaiting trial on 14 counts each of counselling suicide and first-degree murder. His jury trial for these 14 deaths of people living in Ontario is scheduled for September, 2025.
The Crown says in documents filed with the Supreme Court that the case against Mr. Law is complicated by an unrelated case that led to an Ontario Court of Appeal ruling in June.
That ruling, which urges courts to distinguish between charges of murder and charges of aiding suicide, says that merely giving someone a substance that they then use to attempt suicide would not be enough to support a murder or an attempted murder conviction. Instead, the court ruled, the Crown would need to demonstrate that an accused actively helped cause the suicide in a way that “overbore the victim’s freewill.”
Prosecutors warn that the appeals court ruling could make it difficult to prosecute Mr. Law on the more serious charges of murder that he faces. Prosecutors say that the Supreme Court should fast-track consideration of their pleadings, pointing out that Mr. Law is supposed to face trial in one year’s time.
“There is a strong public interest in considering the legal issues raised in this application and doing so on an expedited basis,” Crown lawyers Deborah Krick and Katie Doherty write in their application for a Supreme Court hearing.
They say in their filings that “the Court of Appeal introduced significant limitations on the potential liability of those who engage in actions that assist a suicide.”
Writing on behalf of the Attorney-General of Ontario, the two lawyers say the Court of Appeal decision “raises issues of national importance as the judgment fundamentally changes criminal liability in the context of self-induced death and may impact liability for other consequence based Criminal Code offences.”
Four suicides in New Zealand linked to toxic salt parcels shipped from Kenneth Law
Mr. Law, 59, who is from Mississauga, has been accused of running an online business that police say shipped 1,200 packages of poisonous substances to 40 countries. Police forces in the United States, Britain, New Zealand and in Canadian provinces outside Ontario have launched their own investigations connected to suicides in those jurisdictions.
The Crown lawyers write that Mr. Law’s prosecution is one of the largest-ever murder cases in Ontario, which “underscores the need for clarification of the Court of Appeal’s interpretation of the relationship between the offences of assisting suicide and murder.”
Mr. Law’s defence lawyer Matthew Gourlay told The Globe and Mail on Monday that the Ontario Court of Appeal’s ruling should be allowed to stand without being revisited by the Supreme Court.
“Canadian law has always distinguished between murder and suicide. There is no precedent in Canada for prosecuting an alleged act of assisting suicide as murder – and therefore no sound legal basis for the first-degree murder charges against Mr. Law,” said Mr. Gourlay of Henein Hutchison Robitaille.
“This is what we have argued from the outset,” he said, adding that “there is no reason for the Supreme Court to entertain a further appeal.“
Mr. Gourlay has previously said that his client plans to plead not guilty to all charges. The case is in its pretrial phases.
The case that was decided in June traces back to 2019. That’s when a suicidal nurse in Toronto was accused of injecting insulin into herself, her elderly mother and her toddler in hopes of killing everyone – though all survived. The nurse, whose name is covered by a publication ban to protect the identity of her toddler, was subsequently convicted of two counts of attempted murder.
At the trial, the judge instructed the jury that they could convict the nurse of attempted murder regardless of whether they concluded she injected her mother or if they believed the nurse gave her mother the insulin for her to inject herself.
The nurse’s lawyers argued on appeal that if the nurse only provided the insulin but did not inject it, she should not be convicted of attempted murder since that conduct is covered under the law against aiding suicide.
The Appeal Court ordered a new trial, ruling that proving the nurse provided the insulin to her mother would not be enough to support an attempted murder conviction, while making it clear that the same reasoning should apply to a murder case.
Writing for a unanimous three-judge appeal panel in the June ruling, Justice Jonathon George wrote that judges and jurors should “determine whether the accused, either through manipulation or intimidation (or by other means), overbore the victim’s freewill in choosing suicide.”
It is only through this either-or logic, the ruling says, that a murder or attempted murder charge ought to be considered viable. “If the jury so concluded a conviction for attempted murder might be available,” it says. “If not this same conduct would be the aiding of a suicide attempt.”
Ontario Crown lawyers now argue in their submission to the Supreme Court that this logic is flawed, because it may require that prosecutors prove what was going on in a suicidal person’s mind.
“The specific intent of a victim may not be knowable or provable in a given case … it may be impossible in cases where the victim dies,” they write.
Keesha Seaton, a spokesperson for Ontario’s Ministry of the Attorney-General, declined to comment, citing the unresolved court case.
Prosecutors who are pressing for a Supreme Court hearing say Canada needs consistent interpretations about the interplay of suicide and homicide, given how such cases have many implications – including, they say, in ones involving medical assistance in dying legislation.