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Protection of Conscience Project

Service, not Servitude
Legal Commentary


The Witnesses

A1    Overview

A1.1    The defendant governments called 18 witnesses. Four witnesses came from outside Canada. Of these, three were from the United States and one from the United Kingdom. Only two witnesses came from a jurisdiction (Oregon) where assisted suicide and/or euthanasia are legal.195

A1.2    In contrast, the plaintiffs called more than twice the number of expert witnesses as the two defendant governments (39 to 18). 24 of their witnesses came from outside the country, and 11 of these were from jurisdictions where assisted suicide and/or euthanasia are legal (Oregon, Washington, Belgium, Switzerland, Netherlands).196 Their evidence included testimony from two physicians who actually provided assisted suicide or therapeutic homicide, something quite outside the experience of defendant witnesses.197

A1.3    Of the plaintiff witnesses, 12 Canadian physicians198 and six physicians from other countries199 gave evidence that they believed that assisted suicide and euthanasia could be ethically provided. The judge quoted the testimony of four of these witnesses as representative of their views.200

A1.4    Only six physicians, all from Canada, spoke against the notion that the procedures could be ethical.201 Of these, three appear to have been ambivalent,202 and one did not speak directly to the issue.203 Dr. Gallagher spoke strongly against it;204 Dr. Pereira was not cited or quoted, but presumably did so as well.

A1.5    The numbers alone suggest that the plaintiffs were at an advantage, but numbers alone do not tell the whole story. The judge was required to assess the credibility of the witnesses and the weight to give their evidence. To some extent this is an unavoidably subjective process, so it is important to take note of factors that might reasonably be considered in weighing the evidence, and to pay particular attention when the judge explains why she accepts or rejects the evidence of witnesses.

A2    Defendants' witnesses

A2.1    Three of the defendant witnesses were somewhat ambivalent about the ethics of participation in or morality of assisted suicide or euthanasia.

A2.2    Professor of psychiatry Dr. Harvey Chochinov205 stated, "At this point in time, I would not be prepared to participate in a scheme permitting physician-assisted suicide or intentional death by medical practitioner," (emphasis added), which suggested that he might be willing to do so in future.206 The judge took note.207

A2.3    Dr. Eugene Bereza, Director of the Biomedical Ethics Unit, McGill University Faculty of Medicine,208 was not sure if it was possible in all cases to clearly distinguish between withholding or withdrawing life-sustaining treatment and assisted suicide or euthanasia.209 He allowed that "there may be morally persuasive arguments for physician-assisted death in some cases," though he was against a change in the law because of the risk "of unjustifiable death to vulnerable individuals."210 His admission at trial was consistent with comments he made after the Carter decision was announced, to the effect that, in rare cases, assisted suicide or euthanasia might be considered, and that it may be possible to have both good, accessible palliative care and assisted suicide and euthanasia.211 That statement is not inconsistent with the outcome of the trial. Although it cannot be said that Dr. Bereza testified in favours legalizing the procedures, neither were the plaintiffs unjustified in citing his evidence in support of their proposition that "assisted dying and palliative care are not mutually exclusive."212

A2.4    Dr. Douglas McGregor, a palliative care specialist, agreed that if the procedures were legalized, with appropriate safeguards, physicians could comply with the law without violating tenets of medical ethics, though he added, "I'm not sure that's the right thing to be doing in our society."213 The judge took note.214

A2.5    With respect to the effectiveness of safeguards and the consequences of legalization in other countries, the text of the ruling indicates that the defendants' evidence was provided primarily215 by six witnesses: Baroness Ilora Finlay,216 Dr. Charles Bentz,217 Professor John Keown,218 Professor Brian Mishara,219 Dr. Herbert Hendin220 and Dr. Jose Pereira.221

  • Baroness Finaly, a pioneer and specialist in palliative care, offered opinions, not research results,222 though the judge considered her opinions to be within her field of expertise as a palliative care physician.223
  •  Dr. Bentz was an internal medicine specialist who had published papers about tobacco smoking cessation. His evidence about safeguards was based upon his experience with only one patient.224
  •  The evidence of Dr. Keown, a professor of law who held the Rose Kennedy Chair of Christian Ethics at Georgetown University in Washington, D.C., consisted of his opinions, apparently unsupported by empirical research.225
  • Professor Mishara stated that the high rate of assisted suicide in Switzerland resulted from the absence of legal controls,226 a point that did not speak to the effectiveness of controls where they existed.
  • Dr. Pereira acknowledged that he had not done original research, that he relied entirely on secondary sources, that his interest in the subject was of recent origin, that he had not made a lengthy study of the effectiveness of safeguards, and that his single paper on the subject appeared in a relatively low-ranking medical journal.227
  • The judge acknowledged that Dr. Hendin was a leader in suicide prevention, but noted that he had not done empirical research into euthanasia and assisted suicide. His evidence was challenged,228 and his testimony that "voluntariness is compromised, alternatives not presented and the criterion of unrelievable suffering is bypassed" was "significantly weakened" on cross-examination.229 The judge was left in doubt about his impartiality.230

A2.6    The evidence provided by Dr. Pereira on the subject of safeguards proved unexpectedly problematic. He testified all day on 22 November, 2012. He was cross-examined at length the following day about the paper published in Current Oncology,231 which had been submitted in evidence and formed the basis for his expert report.232 The Farewell Foundation, an intervenor supporting the plaintiffs, described the cross-examination:

Again and again, counsel for the plaintiffs handed up the references that Dr. Pereira had cited, saying that his references did not seem to support the propositions he was making in his paper. Repeatedly, Dr. Pereira conceded that he had not provided an appropriate source for various propositions and facts. Sometimes he even interrupted counsel, admitting "That was an error," because he could see the improper citation before counsel could finish the question.233

A2.7    Although the Farewell Foundation writer asserted that the paper was "strongly discredited," the judge made no comment on Dr. Pereira's performance under cross-examination. It is possible that intervenor bias coloured the writer's assessment (perhaps accounting for the absence of comment by the judge), but subsequent developments support the view that the impugned paper was poorly written, and that Dr. Pereira's credibility as an expert about safeguards was severely damaged.234

A2.8    However, the judge's adverse comments about Dr. Hendin were consistent with the following account, also provided by the Farewell Foundation:

When counsel for the plaintiffs asked Dr. Hendin to confirm references that were cited in his affidavit for Canada, Hendin declared that he could not actually affirm that the references supported his propositions. He told the Court that he never actually read some of the articles, it was a mistake, and he did not have the chance to check his own references.235

A3    Plaintiffs' witnesses

A3.1    The plaintiffs provided evidence from nineteen witnesses about jurisdictions where assisted suicide and euthanasia are legal. Six of these appear to have contributed primarily factual information and some explanatory commentary on the text and operation of laws and regulations. Their evidence seems to have been largely neutral with respect to the issues before the court, and the judge relied on a number of them when describing legal regimes and practices.236

A3.2 Of the plaintiff witnesses who addressed the effectiveness of safeguards and the consequences of legalization,

  • three members of a euthanasia/assisted suicide advocacy group spoke of their experience in counselling patients,237
  • two physicians discussed their direct involvement in assisted suicide or euthanasia,238
  • a retired director and CEO of the Oregon Hospice Association explained how her observations and experience had moved her from opposing assisted suicide to supporting it,239
  • two specialist/researchers offered opinions that safeguards can be effective in preventing the abuses and reducing the risks feared by the defendants.240

A3.3    The most extensive evidence on the subject of safeguards was provided by six plaintiff witnesses with notable credentials: Professor Luc Deliens,241 Professor Helene Starks,242 Dr. Gerritt Kimsma,243 Dr. Linda Ganzini,244 Professor Margaret Pabst Battin245 and Dr. Johannes J.M. van Delden.246

  • Professor Deliens was the co-author of numerous empirical studies on end-of-life decisions,247 several of which were cited in the ruling.248
  • Professor Starks spent five years as a research manager and co-investigator in a study exploring assisted suicide and euthanasia from the perspective of the patients and families involved in the procedures.249
  • Dr. Kimsma developed and was an instructor in a Netherlands program that supports and consults with physicians dealing with euthanasia requests and, with Professor Battin, co-authored one of the studies cited in the ruling.250
  • Professor Battin's research focus was assisted suicide and euthanasia; the judge referred to three of her papers.251
  • Dr. Ganzini, an Oregon pyschiatrist, had fifteen years' experience studying physician-assisted suicide in the state, co-authoring numerous studies on the subject.252
  • One should also note that defendant witnesses, including Dr. Keown and Dr. Pereira, sought support for their positions in research done by Dr. Ganzini.253
  • Dr. van Delden is said to have participated in "all of the major empirical studies into end-of-life care that have taken place in the Netherlands since 1990." 254
A4    Assessing the evidence of the witnesses

A4.1    Madam Justice Smith described Dr. Ganzini and Professor Battin as "impressive, respected researchers, who have both made a long-term study of the ethics, and risks, of assisted suicide and euthanasia" and had carefully analyzed the evidence. She said that Dr. Starks' evidence was "carefully and fairly presented" and accepted it, commenting favourably on her objectivity.255

A4.2    In contrast, the judge acknowledged the expertise of Dr. Pereira, Baroness Finlay and Dr. Hendin, but commented that none had done empirical research to support their opinions.256 She accepted the anecdotes provided by Dr. Hendin and Dr. Bentz, but the value of anecdotal evidence is limited: in this case, to demonstrating that "safeguards cannot be assumed to be 100% effective." 257

A4.3    It should be noted that Madam Justice Smith did not uncritically accept all of the plaintiffs' evidence. For example, she found Professor Luc Deliens evasive with respect to one point on cross-examination, and that it seemed he did not want to admit that a study he had co-authored reported that patients 80 years of age and older were especially vulnerable to "life-ending acts without explicit request."258 In other respects she appears to have found his evidence satisfactory.

A4.4    The judge also reviewed the evidence of fourteen defendant witnesses259 and eleven plaintiff witnesses260 to consider the feasibility of establishing effective safeguards in Canada.

A4.5    With respect to risks associated with patient competence, she gave greater weight to the evidence of plaintiff witnesses, Dr. Donnelly, Dr. Smith and Dr. Ganzini, two of whom (Dr. Connelly and Dr. Smith) were psychiatrists with particular expertise in assessing competence. In comparison, she noted that defendant witnesses the expertise of Dr. Hendin, Professor Heisel and Professor Mishara lay in suicide prevention, that of Dr. Gallagher and Dr. Finlay in palliative care, and appears to have disregarded Dr. Sheldon's views as outside the "mainstream."261 On the issue of risks arising from subtle pressures or coercion, she reached her conclusion by drawing on the evidence of both defendant and plaintiff witnesses.262

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