On Addiction

I have been meaning to write a blog for some time now on the troubles facing the Mayor of Toronto, for reasons that have nothing to do with politics. For starters, I was appalled by all the TMZ-like coverage of Rob Ford’s every move and all the second guessing as to whether he is really in rehab and if so, where? I am equally disgusted by the Mayor’s tweet from rehab about how “amazing” it was and his interview with a US radio show where he suggested that rehab “reminded (him) of football camp”. And don’t even get me started on his inner circle, who seem more desirous of enabling him for their own political gain than genuinely trying to help him kill the demon before it kills him. Yet I wasn’t motivated to write this article just for the sake of calling out the Mayor, his family, and the press. There was more to my thinking, and today I am motivated to write because I have been touched by the deaths of two individuals in the last week whose addictions were the certain cause of their deaths. First, the husband of an old friend. He, I did not know at all. But very sad to me nonetheless since I have known the wife very well for many years, and am heartbroken by her anguish yet helpless to make her pain subside. Then two days ago I awake to a text that C, one of my dearest friends for the last 15 years essentially drank himself to death. The saddest thing about this latter death is that I saw it coming even as I, along with C’s other loved ones, made enormous attempts in the last few months to help my friend get his life in order.

The hallmark of addiction is that one continues to feed the beast even in the face of one’s life falling apart. Despite the consequences, the addict continues to lie to his family, his friends, his workplace colleagues, and most significantly, to himself. In this regard all addicts, male and female, young and old, are alike. It doesn’t matter if the addiction is to drugs, alcohol, gambling, sex, food or anything else. Often, but not always, one of these addictions has a symbiotic relationship with one or more of the others. While depression may not be the root cause of addiction (there is much research which suggests that that there is a genetic predisposition to addiction, particularly as regards drugs and/or alcohol), almost all addicts by the time they are in the throes of their addiction suffer from severe depression. At some point the substance of choice becomes a way to manage the depression, the emptiness, the loneliness. The worst thing for an addict is being idle. The lack of structure and time on an addict’s hands mean only one thing- the addict will use. If there is anything worse than idleness for an addict it is when those around him enable him in the face of uncontroverted proof of his addiction. I use the pronoun “he” because the addicts referred to in this article are male, but make no mistake that women are just as likely to be addicts.

I know of what I speak about these matters, having been an addict myself. What began as a way to treat the pain of my severe migraines in 2003 ultimately became, by 2007, a full-fledged addiction to prescription narcotics. I lied when my ex-wife called me on it. I lied to my doctors (yes, doctors- I had many of them- all the better to get more pills). I was confronted with a mini-intervention of sorts by two friends and colleagues who sensed something was amiss. I lied my way out of it and immediately went to yet another doctor to obtain yet another prescription for more Oxycontin which could be crushed, chewed or snorted for the next high. Mostly I lied to myself, thought I was managing, thought nobody knew. Even convinced myself I wasn’t an addict. Even throughout a 2 year period when I was probably never not buzzed. Even as my life fell apart- even as my marriage ended; even as I couldn’t care for my children; even as I became inattentive to my clients and started getting complaints to the Law Society; even as my bank account became increasingly empty with less and less new client retainers to replenish it; even as my health was failing and my naturally thin self lost a terrifying 35 pounds; even as I slept 12 to 18 hours a day but suffered a constant malaise; even as I lost joy in absolutely everything I formerly loved so much. And yet I was lucky, although at the time I didn’t realize it, because I was surrounded by people who loved me, who knew I was struggling, and who only wanted to help. And they tried. My friends, my family, my professional colleagues. Not their fault at the time that they had no effect, It wasn’t until one day when I had an epiphany. At that moment, in early 2009, I accepted my disease and committed to getting help. At that moment, I realized I had fallen into a pit of despair and hit rock bottom and thus began the slow ascent back, a task that at times felt Sisyphean. This required me to give away what clients I had left and take a leave of absence from the practice of law. To dramatically adjust the standard of living to which I had become accustomed over the previous 15 years, To give up the 50/50 shared parenting time I had with my kids. To put myself in the hands of my family physician, my Ontario Lawyer Assistance Plan (OLAP) social worker and peer counselors, my therapist. To do what they said, when they said it, and how they said to do it. Not such an easy task for someone used to being his own boss for more than 15 years. I pushed myself physically, mentally, emotionally. I did the 12 Steps. And the pain of getting clean was like nothing I have ever experienced before or since. In the early days I thought I would never be free.

I know of what I speak because I also volunteer as a peer counselor and board member with OLAP. I have counseled numerous lawyers and paralegals suffering the same fate and been able to reassure them they weren’t alone, help them find the right place to turn for professional assistance, and advise them on how to deal with the inevitable practice-related issues that are often present in such cases.

I know of what I speak because I devote a certain percentage of my annual billable time to pro bono cases. As such, I regularly represent lawyers at Law Society discipline hearings, as well as indigent clients in the criminal courts. In my experience, the vast majority of lawyers in front of the Law Society Tribunal are not, as the Toronto Star would like you to believe, vile, immoral crooks. Most are decent men and women who suffer from addiction or depression and often both. And contrary to public perception, most accused in criminal court are not bad people. There too the system is burdened with a disproportional number of defendants who would not be there but for their substance abuse issues.

My friend C and the Mayor were the same. Ford’s current stint in rehab smacks more of political opportunism than a genuine attempt to heal himself. While the Mayor may come back from rehab somewhat better, I predict it will not last. His behavior, and that of his family since he went in, does not indicate a serious attempt at rehab. I hope I am wrong but as I noted thrice above, I know of what I speak on this subject. The Mayor’s family and political aides do him no favour by either explicitly or at a minimum implicitly condoning his actions and his refusal to get serious help. By contrast, my friend C’s family and friends rallied around to try and push him to get the help he needed. However, like the Mayor, my friend didn’t want help (or believe he needed it). C put on a charade of wanting and needing our help, of seeking treatment, only to run back to the bottle when we went home. Or he out and out lied to us and told us he wasn’t drinking and we needn’t worry any longer. Of course, the one really being lied to by C was C himself. Some he knew may believed him. Yet, even on the phone listening to him earnestly trying to convince me he had been sober for 5 days, that he was going through serious withdrawal, that he was intent on getting through it and on staying sober, I knew he was lying on all counts. Yet until the addict stops lying to himself, no amount of outside help will benefit him. But to ignore the addict’s lies or to turn away rather than to keep trying to help is akin to buying them the drinks or holding the needle.When my son asked me a few weeks ago how C was doing, I said I feared he was going to drink himself to death (not deliberately, but the end result is sadly the same). I was expressing a fear, not actually intending that my words would be prophetic. Unfortunately, I know of what I speak in these matters.

Which brings me full circle to what originally upset me about the tabloid style coverage of Rob Ford’s obviously alcohol and drug fueled antics these last number of months, and the “Where’s Waldo” game that the media began to play as soon as word spread that Ford was in rehab in an undisclosed facility. It may be entertaining to the masses, and sporting for the journalists, to treat Ford as just another celebrity punch line. Sadly, the major media outlets once again put entertainment and spectacle above real journalism and the chance to educate readers, possibly recapturing even a modicum of the public trust that they lost as they trailed behind another movie star’s limousine. For addiction is not like some reality show you can watch for fun with your mates to satisfy your basest lowbrow desires at the feast of others’ misfortunes. Addiction is a disease, one which kills just as surely as cancer. Everyone knows at least one addict in their life. You may not know you know an addict but you do. Too often we look the other way. And to be fair, you can’t police everyone you know. And the addict must ultimately take responsibility for his own situation. Oh sure, many addicts blame their cycle of devolution on some sort of triggering event like divorce, job loss, financial stress, and the like. But the addict is the only one who can change his behavior. As a society we need to talk about these issues when they are staring us in the face as opposed to using them for political gain (as the Mayor’s foes have done) or treating the events like the circus has come to town (as did every major media outlet in Toronto and many around the world). The Rob Ford saga was a perfect opportunity for those who had a political or editorial bully pulpit to engage the citizenry in a serious dialogue about a serious issue which affects us all. The addict has family, friends and work relationships. All of those individuals are emotionally affected by the addict, and since they don’t live in a vacuum so are those around them. One addict can negatively impact dozens of lives. All of this leads to decreased productivity, higher divorce rates, more kids without involved parents…are you starting to see a pattern developing? It takes an addict, and only one, to destroy the village.

My story of addiction has a very happy ending. I have been clean of narcotics since January of 2010. The depression I suffered for years also magically disappeared mere months after the drugs were permanently out of my system. Four and half years later, I am now in touch with deeper feelings than I have ever known. I am happier and more content with life than I ever imagined. I am more engaged with my children, have a keener appreciation for the little daily things that make life great. I am a more focused and better lawyer than I have ever been. I try new activities and push the boundaries of my comfort zone. The anger and insecurities I carried for years into my addiction are no more. I am confident and secure. When people ask me how I am doing I almost always answer “never better!” and I mean it. I may look like a short, thin, bald, middle aged Jew, but I FEEL like Adam Levine!

The book on C’s addiction had a much sadder ending, the saddest ending of all. He leaves behind many people who loved him including his six year old son.

So, Mayor Rob Ford, you are the narrator of your own biography of addiction. As things stand, it appears you may only have a couple of chapters left to write. When I read the last page of your book, will it be you, standing proudly with your family, having overcome your addiction and discovered a genuine joie de vivre unmediated by drugs and alcohol? Or will the last chapter of your book be a eulogy read by your children? The choice is yours Mr. Mayor. I think you are likely a very good man who loves his family and entered politics for the noblest of reasons. The Rob Ford we have seen is distorted by his addictions. Will we see, and you rediscover, the REAL Rob Ford? Only you can decide. I mean really decide once and for all to make a clean break and get well, not like this present attempt, which is layered with a startlingly disingenuous veneer. Should you choose the right path, and there is only one right path lest you end up like my friend C, I only hope your “supporters” have the good sense to keep quiet and the media the decency to leave you alone to recover in peace and quiet. Remember, I know of what I speak in these matters.

And The Secret Is…

Ever since Facebook started cluttering our daily news feeds with paid placements, there has been one product genre that seems to muscle out all the other ads. I am speaking about ads promoting products, seminars and business selling what I shall call “success without effort”. I speak,for example, of invasive ad placements for trifle such as The Millionaire Mind; The Secret; seminars for how to buy real estate with no money down; various weight loss fads; and online diploma mills masquerading as legitimate colleges. This is in addition to the dozens of books and courses purporting to teach one how to find and maintain the perfect relationship or teach you how to raise your kids like a Tiger Mom. And let’s not forget updated versions of the old Amway and water filter multilevel scams with juices and vitamins instead of household products.

While the ads themselves seem almost cartoonish in their simplicity, and the actual products for sale appear benign, I cannot help but be disturbed by two particulars of note: (a) that people I might otherwise have respected for their intelligence and good judgment clicked the “Like” button, or even worse, shared the ads on their own posts. This, of course, is exactly what the advertisers are hoping for, which is to create the patina of legitimacy as a result of peer endorsements; and (b) these ads are really aimed at the most desperate amongst us. And what better way to market to people’s insecurities than through Facebook- that great new social media platform where everyone else’s life appears more exciting and successful than your own. If ever there was a place where the putative cool kids shine and the insecure are driven insane by the constant bombardment of their insufficiency, Facebook is it. Facebook- where the cliquishness, one-upsmanship, and passing of judgment continue long after high school can no longer be seen in one’s rear view mirror.

These ads are in addition to the hundreds of re-posts of articles, videos, photos and the e-version of those old success posters, which like the ads seem to suggest that the key to success is just the right mindset.

The ads and the underlying promotions are not new. It is only the method by which the message is disseminated. Tom Vu had jiggly ladies on a yacht and fancy cars in front of a mansion on late night infomercials 25 years ago. Television shopping channels would never have gotten off the ground but for the various exercise and weight loss fads. Amway, the granddaddy of the success without effort school of sales, has been around for generations now, having recently changed only its name but not its insidious sales tactics. Self-help gurus are nothing new. Norman Vincent Peale’s The Power of Positive Thinking, perhaps the template for the tens of thousands of self help books since, was first published in 1952. A generation earlier, in 1937, the “imagine untold riches and they will follow” school of thought was firmly established with the publication of Napoleon Hill’s Think and Grow Rich.

It’s hard to blame anyone for falling prey to the twin temptations of fame and fortune. The desire for financial success is ingrained in our first world capitalist mentality. Even in Canada, our greatest socialist thinkers were more often than not the scions of wealth. Speaking frankly, money does matter. It provides one with options and allows for a certain freedom. To those on the outside of the fishbowl, all that money and fame sure looks like fun. Celebrity culture has increased the pressure on women (and increasingly men) to look a certain way. All the while, those of us who are parents are all motivated by the desire for our children to grow up to be happy, independent, financially successful adults. We are equally terrified we will screw them up and as such yearn for any competitive edge that will give our kids a leg up.

Even as a young barely pubescent boy mesmerized by the charlatans on late night TV (amazed at their unmitigated chutzpah, yet grudgingly respectful of their oration skills and rhetorical flourish), it has been a mystery to me that any seemingly intelligent adult could fall for this clap trap. And just when it seemed that the dawn of the 500 channel universe and the rise of the Internet giants would quell the self-help beast as people pacified themselves with all that the e-universe had to offer, Oprah helped turn The Secret into one of the bestselling books of all time.

A quick search of Amazon.com reveals thousands of books on parenting, many of which offer conflicting advice. The same can be said for books on romantic relationships. As for self-helping your way to money and power, it seems that sadly with each new generation, the expectations go up in direct correlation to the decline of the work ethic. Factor in the immediacy of social media, the pervasive influence of reality TV, and an era in which advertisers often control the production of seemingly innocuous entertainment like puppets on a string. The result is a society where everyone wants to be rich, famous, thin, glamorous and live out what Robin Leach called their “champagne wishes and caviar dreams”. The difference today is that in the 1980s when Leach’s show aired, those lifestyles were looked upon with wonder and amazement, but always for entertainment purposes only. Today, too many people devoid of genuine talent and/or work ethic feel entitled to that lifestyle as well. Sadly, what is left is left out of the narrative of the rich and famous today are the years of toil and dedication, the sleepless nights, the financial peril in which they existed before the big time hit. Of course, with the advent of Youtube and reality TV, some people really do become overnight successes with little or no effort. But such success is fleeting. Real enduring success, be it career, relationship, parenting, business or financial, cannot be constructed in an afternoon like a 7 year old’s Lego creation.

Just today I was listening to one of my favorite podcasts, a comedy podcast that often takes listener calls. At least twice a week someone calls in and asks how to “make it” as a stand up comedian. When pressed by the host, the caller inevitably admits that he has never even so much as done an open-mic amateur hour, and often has not even developed 5 minutes of material. A brief conversation ensues that makes it abundantly clear the caller isn’t even funny. But that doesn’t stop the aspiring Seinfeld from seeking advice on a shortcut to the top of the comedy world from one who has made it.

The Secret, my friends, is that there is no Secret. There is no shortcut. There is nothing that will come merely by hope and prayer. Financial success will come with hard work and by being smart with your money. Education that will actually yield dividends will not be found on the Web; it will be found in a respected educational institution where entrance standards are high and getting through to graduation requires effort. At least in this country, one cannot buy real estate with no money down, and our foreclosure laws do not allow for below market value sales. Real estate investment is a long game replete with risking your own money and credit. And losing weight is, at end the of the day, simply what every doctor of repute will tell you- take in less calories daily while burning out more calories through exercise.

There are no magic beans, potions or secrets that will allow you to achieve your goals, be those goals personal or financial. Every one of us is able to achieve certain goals we set for ourselves. But we must be willing to work for those objectives, to persevere even in the face of the most Sisyphean challenges to our long term goals.

If there is one thing that I am trying to instill in my three children, it is the concept of grit. I want them to understand that they can achieve almost anything they set out to do, provided they are focused, driven, work not just hard but also smart, keep going when the chips are down, and never, ever, expect to achieve merely because they dream. And depending on the goal, they must actually possess some basic aptitude. I will make sure they know that they will not become rich by joining a multi-level marketing program, nor will they achieve their ideal “look” by ingesting some special formula. They will not obtain a career-making degree without going to school- real school and studying long and hard.

As for me, I will not be a better parent merely by reading a book. Parenting is the most challenging job of all. It requires time and much thought to do it correctly. I will not be a better husband for my next wife than I was for my last merely because I pick up some sound bites about communication from the Dr. Phils of the world. I must truly make an effort to listen with an open mind to the needs and wants of my partner. My future career success will not be an automatic merely because I have the momentum of past success. I must continue to dedicate the time and effort going forward that I have in the past.

So I guess what I’m taking 1400 words to say can really be summarized in 7: The Secret is there is no Secret.

'Officially Induced Error,’ Or Wishful Thinking?

Litigator and Paralegal SCOPE contributor Darryl Singer examines the defence of “officially induced error,” in light of a recent case involving an e-bike operator whose driver’s licence had been suspended.

The accused in the recent Ontario Superior Court of Justice case of R. v Clifford, 2014 ONSC 2388 (CanLII) introduces a relatively rare defence in criminal proceedings, that of “officially induced error.”

This somewhat novel defence can be used by an accused to establish that she lacked the requisite mens rea to commit the offence because of some misunderstanding of the law.

In simple terms, this could be used to fight a parking ticket on the grounds that the signage indicated to a reasonable person that it was legal to park in a particular space when in fact it was not. The defence could also be used in a scenario, such as a bail violation for consuming alcohol. An accused may not be legally culpable if, although the court record indicates that refraining from alcohol is one of the terms of the bail, the actual document given to the accused did not have that particular prohibition checked off.

Essentially, the “officially induced error” defence operates in exceptional circumstances to defeat the maxim that “ignorance of the law is no excuse.” This idea that being unaware of the law is not in and of itself a defence to a charge of breaching that law, is well settled in Canada. In fact, it is the operative rule in most instances.

State-authorized Advice

But what if the accused’s understanding of the law has been as a result of information provided by an authorized representative of the state? The leading cases on the topic are the Supreme Court of Canada decisions in R v Jorgensen [1995] 4 SCR 55, and Lévis (City) v. Tétreaul [2006] 1 SCR 420.

Madam Justice E. Gillese provides a most helpful overview of the requisite elements of the defence in her decision dismissing the defence of officially induced error, in R. v Pea (2008) 93 OR (3d) 67 (ONCA). In order for the defence to apply to rebut the presumptive position that ignorance of the law is no excuse, there are five elements that must be met:

  1. The accused must have considered the legal consequences of his actions and sought legal advice.
  2. The legal advice must have been obtained from appropriate government officials who were involved in the administration of the law in question (in other words they must be state actors with apparent authority).
  3. The legal advice must have been erroneous.
  4. The accused must have relied upon that advice.
  5. The accused’s reliance must have been objectively reasonable.
  6. The accused must meet all elements of this test. While the onus is on the defence to meet establish that the exception applies, the burden is on the balance of probabilities.

In Clifford Mr. Clifford was under a five-year prohibition from operating a motor vehicle. The resourceful Mr. Clifford purchased an e-bike, which he believed was not a “motor vehicle” within the meaning of the Criminal Code. The basis for this belief — the officially induced error — was that in his several post-suspension roadside interactions with the police, he was on his e-bike and they did not charge him.

In each case, the officer was aware of the driving prohibition imposed upon Mr. Clifford, stopped him when he was on his e-bike, and ultimately let him go on his way. Clifford had actually had a discussion with one of the officers about the prudence of riding the e-bike while his licence was suspended. Clifford argued that as the police knew about his use of the e-bike and his licence suspension, they had in three separate occasions not charged him, and thus he assumed this to mean that the e-bike was not in violation of his driving prohibition.

Reasons for Defence Failure

The defence ultimately failed because of the specific facts of the case. The Court found that at no time did any of the officers explicitly or even impliedly advise Clifford he could use the e-bike. Further, he did not actually seek out the advice. In one instance, the officer actually advised him that another officer might very well have charged him for driving the e-bike while under driving suspension. In another, the officers had a discussion about it and advised Clifford that they declined to lay charges at that time because they were uncertain as to whether or not the e-bike was a “motor vehicle.”

The Court found that that at no time did the police ever advise Mr. Clifford that he could lawfully use the e-bike. Although the Court in Clifford did not go through the formal five-part test set out by the Court of Appeal, they seemed to arrive at the same conclusion with a more simple analysis of the facts. Even if Justice Koke had gone through the test, a dismissal of the appeal and upholding of the conviction was the only logical conclusion. For example:

  1. it is arguable as to whether or not Mr. Clifford considered the legal consequences of his actions or simply attempted to be creative and buck the system;
  2. the police were indeed state actors with authority to enforce the law in question, but on the facts of the case it appears they did not actually provide any legal advice to Mr. Clifford;
  3. as they did not give any advice, there was no advice to be erroneous;
  4. although Clifford said he relied on the advice, what he actually relied upon was an assumption the failure to charge him on three separate occasions was tantamount to explicit advice; and
  5. his reliance, for the reasons above, was not reasonable.

The lesson to be drawn from the recent decision in Clifford is that, absent a reasonable argument on all five points of the test, the defence of officially induced error is unlikely to succeed.

by Elizabeth at Paralegal Scope Magazine