Humanist Perspectives: issue 152: An Interview with Defense lawyer Catherine Tyhurst, January 2005

An Interview with Defense lawyer
Catherine Tyhurst, January 2005
by Gary Bauslaugh

What do think are the larger implications of this trial?

The most important thing about the trial, of course, is that Evelyn was found not guilty. The most significant legal result of the trial came in the Judge’s Charge to the Jury, when he gave a quite narrow interpretation of the Criminal Code in regard to assisted suicide — especially if the police educate themselves as to the interpretation, and do not again make arrests and prosecutions such as they did in this case. We knew this was the critical issue in the trial and we were working on it from day one.

Prior to Evelyn’s trial there had been only one judicial interpretation of this section of the Code — no one really knew what it meant. Now, after this trial it is clear that aiding suicide requires active and intentional intervention. The Crown had been of the view, when this case was first pursued, that mere possession of exit bags was incriminating, and that provision of information on how to commit suicide was as well.

There may be another important result of the trial, if Canadian Justice Minister Irwin Cotler follows through on his statement that it is now time to reopen the law on assisted suicide. A number of politicians here on the Island, including Jean Crowder from Duncan and Keith Martin from Victoria, have indicated their interest in the matter.

What sort of law do we need?

We won’t get much help from some of the overstated concerns out there, like those of the Euthanasia Prevention Coalition. We should look at what is done in Oregon and Holland, where very civilized procedures, with safeguards, are in place. We need to ensure that people have access to good inform­ation and to the most humane ways of dealing with the issue.

The Coalition, and other people, say that they are concerned about how changes in the law might make disabled people more vulnerable to having their lives taken from them. Is that a legitimate concern?

This concern comes from confusion about the issues we are looking at. Suicide is death at one’s own hand, and assisted suicide is actively intervening when a person takes his or her own life. The Martens case did not deal with the Rodriguez situation — where a person is unable to take their own life because of illness or infirmity. The Martens case had nothing to do with the disabled.

Why did you decide to go for a jury trial?

I felt from the beginning that this was a jury trial. This is a matter that ultimately affects us all and it was a matter for the community of Martens’ peers to decide. Furthermore, our attitude toward assisted suicide is a matter of community standards, so the matter should be decided by community representatives.

What community standards are in play here?

I can’t think of any other issue so relevant to the question of personal autonomy — to what extent can we make decisions about our own bodies, to what extent can the state interfere? And should we not have the right to have someone with us when we decide to check out?

Was ‘jury nullification’ [jury overriding the law, refusing to find a defendant guilty even when they are technically guilty, as with Henry Morgenthaler] ever a possibility in this trial?

It was not necessary because there was not a convincing case to find Evelyn guilty.

How do you think the police behaved?

They were very rough at times. They bullied Bernice Poelzer [Evelyn’s daughter who lived in a suite in Evelyn’s house.] They did not keep accurate exhibit lists. They panicked in arresting Evelyn when they did, after Leyanne Burchell’s suicide. Their treatment of Evelyn was similar to the way they treat most suspects, with a presumption of guilt.

How did the Crown handle the arrest?

I was surprised at how vigorously they opposed bail for Evelyn. They wanted to keep her in custody until the trial, which could have been over two years. They thought she was part of some international ‘death ring’, or something like that, because of her work with the Right to Die Network. They were after the whole Network. We just wanted to get her released, so we had to agree to very strict conditions, including that police officers be allowed to search her house every week. She was put on a curfew. We did not think these conditions were fair at all but we wanted to get her out. She had already been in there for four or five days, because the arrest took place just before the long July 1 weekend. We thought the home search provision in particular was unjustified — that it was a serious invasion of privacy.

The Crown, in these early stages, treated this as seriously as a murder case. They seemed to think they were uncovering an organization with a mandate to kill people.

The Crown’s role in Canada is supposed to be seeking a fair trial, not a prosecution. They are not supposed to be wedded to the outcome. But in reality the system is adversarial, and many prosecutors see their role as trying to win. Though the Crown lawyers first involved seemed overly aggressive, the two who eventually were assigned to prosecute the case — Neil Mackenzie and Susan Rupertus — acted in the true traditions of the bar. They presented evidence in a straightforward manner. They behaved exactly as they should have.

Why were the original Crown lawyers so aggressive?

They saw this as a high profile case, so there may have been some political considerations involved. The Euthanasia Prevention Coalition and others were lobbying for prosecution. They were claiming that it was going to be “open season on the disabled” if Evelyn was not prosecuted. And they did seem to think it was an international conspiracy.

What did you think of the jury’s question [page 18]?

Peter Firestone thought it was an acquittal question; I thought it was a guilty question. Given the not guilty verdict that come not too long afterwards I think Peter was right. I think they saw the undercover tape as exculpatory — Evelyn clearly said that she had not done anything.

Why was there so much time spent on the drug testimony? This did not appear to be so crucial to the outcome.

Initially, because of the helium tanks and exit bag found in Evelyn’s van when she was arrested, the Crown thought that they had a strong case for aiding the suicide — that Evelyn had provided the means. Then came the autopsy report — oops — she died of an overdose of drugs. So the Crown revised its theory. It was not an exit bag death but a drug overdose, and Evelyn had provided the drugs. In the end they brought both possibilities to trial — not a particularly good strategy.

But to answer your question, it was necessary to contradict the Crown’s suggestion that Evelyn had been a drug dealer, (i.e., that she was providing drugs to people so they could commit suicide). The only evidence they had were some lists of drugs found in Evelyn’s house, lists which did not closely match the drugs found in Leyanne’s body, and some pills from Leyanne’s house that were found in Evelyn’s van. Apparently Evelyn had removed these to remove evidence of suicide, because of her justified fear of prosecution, but because some had prescription labels made out to Leyanne it was clear that Evelyn had not supplied them. The Crown wanted to suggest that Evelyn had taken them to supply to other people, but they were not drugs of choice for suicide. I had to make that clear in cross examination.

What do you think about the undercover operation?

It was difficult for Evelyn — it was such a betrayal. The whole experience of the undercover operation was devastating. The police can lie, and they can secretly record conversations, with judicial authorization.

What worried you most in preparing a defense?

Initially I was most worried about the drug lists in Evelyn’s house. These might have bothered the jury. But it was a superficial problem because it became meaningless once examined closely. But that is why I had to do a lengthy cross examination on this. The other concern was that of Monique’s health, and the notion, encouraged by the Crown, that she was perfectly healthy. The Judge was annoyed by my pursuing this, saying how it was irrelevant to the charge of aiding. But it was important in how it might affect the perception of the jury.

Did you think that the discovery of exit bags in Evelyn’s house would be a problem?

Such bags are available from various groups. There was no way to show that she had supplied bags to Monique or Leyanne. In fact the literature suggests that it is essential for people to get such things themselves, to ensure they are serious. And the bags are not dangerous in themselves. They require helium to be effective, the bag by itself cannot kill you.

There is an important legal issue here of ‘specific intent.’ If you make such a bag you must have knowledge that it is going to be used by a person to kill themselves, in order to be criminally responsible. Guns are a similar example. They are often used to kill people, but the manufacturers are not held guilty for that. Had they made a gun for a specific murder then they could be found responsible, but not for simply manufacturing a gun.

Would you like to mention anything about the women who died?

Yes I would. One of the reporters at the trial mentioned that I had three clients, and I did. The defense did have three voices, the voices of Evelyn, Monique and Leyanne. And they were voices of courage and determination. Leyanne had a wonderful zest for life, which she enjoyed to the fullest for as long as she could. Monique had a deep understanding of what she was doing, and she too was an extraordinary woman. Their voices were present throughout the trial.