APPENDIX "A"
The Witnesses
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.
A2.1 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
A3.1 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
A4.1 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