Humanist Perspectives: issue 152: The Trial of Evelyn Martens

The Trial of Evelyn Martens
by Gary Bauslaugh

the final day

Thursday, November 4th, 2004. I was shell shocked by the election results of two days earlier — by that mind-numbing triumph of reactionary forces in the United States. As I wondered what would happen in this trial, a phrase of Dorothy Parker’s kept going through my mind: “What fresh hell is this?”

The jury had gone out the previous afternoon, after three weeks of Crown testimony. The Crown had called 38 witnesses — the Defense none. It seemed to me that, with all of their witnesses, the Crown had entirely failed to prove that Evelyn Martens was guilty of assisting the suicides of two women. But the election had shaken my confidence in the rationality of public processes. What would this jury, consisting of twelve citizens from the small town of Duncan, British Columbia, do?

All of us there — reporters, friends of Evelyn, observers of various sorts — felt that this could well be a landmark trial. Perhaps it would influence future prosecutions, perhaps it would inspire new legislation. Also at stake, though, was the future of the small elderly woman, who had been harassed for two and a half years by the formidable combined forces of the RCMP and the Crown Prosecutor’s office. They probably spent a million dollars — our dollars — on the case.

Evelyn, though, had never seemed the slightest bit cowed by the state powers aligned against her. Nor did she seem particularly bothered by the constant presence of a member of the Euthanasia Prevention Coalition, an organization that had applauded her arrest. In a newsletter published shortly after her arrest they had proclaimed “death zealot kills two.” During the trial their representative, Beverly Welsh, was quoted in the press saying that she hoped Evelyn would go to jail.

Evelyn remained resolutely cool — standing straight when the jury and Judge entered the Court, and then sitting calmly beside her lawyers, Peter Firestone and Catherine Tyhurst of Victoria. While her supporters, including me, often seemed nervous and uneasy, Evelyn showed no sign of concern. She felt strongly she had done nothing wrong — that she had helped people in severe distress who could find help nowhere else. “They can do whatever they want to me,” she said at a break. “Jail is not that bad.” Evelyn, at the age of 73, was facing charges that could imprison her for 28 years.

Instructions from BC Supreme Court Justice Barry M Davies had been given to the jury, following closing statements by the Crown and the Defense. Davies told the jury how to proceed and how to evaluate evidence. He also gave a lengthy summary of the cases for the Crown and for the Defense. The jury, of course, had not been allowed to discuss the evidence until they were sent out for deliberations, after the Judge’s instructions, so it was likely that there were things they had to sort through.

But it was possible that they would quickly come to the same conclusion I had come to, that the evidence clearly showed that Evelyn was not guilty of the charges against her. It was also possible that they would just as quickly come to the exact opposite conclusion. Others in the gallery, Beverly Welsh in particular, were as certain of that as I was of my assessment. It seemed most likely, though, that there would be some disagreement amongst the twelve randomly selected people, and that at least some discussion and analysis would be necessary. So I did not expect a sudden verdict.

aiding or abetting

According to Section 241(b) of the criminal Code of Canada, said Justice Davies, the prosecution depended on proving either that Evelyn had ‘aided’ the suicide in an active, not passive way, or that she had ‘abetted’ the death by encouraging the women who died to commit suicide. Prior to his instructions, however, the exact definition of ‘aiding’ had been unclear. It was possible that helping in any way, even just attending the suicide to provide comfort, could be considered grounds for prosecution.

Clarity regarding this issue was of central importance in the trial, because there was no question that Evelyn had attended the two suicides in question — this was never in dispute. It was clear she had gone to see the two women because of their planned suicides. Evelyn’s defense essentially was that she had gone only to give comfort and emotional support to the two women in their last moments of life, but that she had taken no action to physically assist in the process. The key moment in the trial, then, was when the Judge instructed the jury that such ‘passive’ presence was not a violation of the law. A broader interpretation would have meant that a verdict of guilty would be virtually inescapable, unless of course the jury simply refused to prosecute a woman for acts of kindness.

So ‘aiding’ meant some sort of active participation in the suicides. This could have been providing equipment to bring about death, or providing drugs of the sort that are recommended either to cause death themselves or to facilitate death though sedation prior to the use of other means. ‘Aiding’ could also mean helping to take the drugs or to use equipment — the equipment in question in these cases being plastic bags called ‘exit bags’ and helium tanks, for the purpose of causing death by inhaling helium through a tube in the bag and displacing oxygen from the lungs. The bag with helium is the current preferred method for suicide in the literature on the subject. It is quite certain to cause death, difficult to detect, and does not have unpleasant complications — it avoids the feeling of suffocation.

‘Aiding’ could also mean helping if something went wrong, though this was not explicitly mentioned by the Judge. One of the fears people have in wanting to commit suicide is that they might for some reason not fully complete the task, and be left alive with serious brain damage, in even worse condition than that which made them want to die in the first place, and without the physical ability to complete the job at another time. One of the women in this case — Monique Charest — had suffered from visions of becoming trapped in a non-functioning body, unable to do anything to end her miserable plight. This is often a fear of those who wish to end their lives, not wanting to wait until they are unable to help themselves.

When people want to wait until their condition worsens, the law makes it difficult for them to do so. This was what was at issue in the Sue Rodriguez case — she knew she was going to become disabled because of ALS disease, and at some point as she got worse she would not be physically able to take her life. She, however, wanted to live as long as she was not completely disabled, and then be able to die when she was disabled to the extent that she could not have any semblance of a normal life. The law made it impossible for this to happen legally, so it was done, apparently, with the aid of friends and possibly a doctor. There was (mercifully) no prosecution of those involved, but unfortunately our Federal politicians did not take this opportunity to change the law. A problematic law remains in effect, a law that makes possible the prosecution of people like those who helped Sue Rodriguez, a law that led to the trial of Evelyn Martens.

‘Abetting’ suicide, in legal terms, means actively encouraging suicide or, in some serious way, inciting a person to take his or her own life. This aspect of Section 241(b) was not of significance at the trial, since any evidence on possible abetting was all in Evelyn’s favour. Brenda Hurn, Evelyn’s friend who attended the Charest suicide with her, and was subpoenaed to testify, indicated that after a long talk with Monique, Brenda and Evelyn had suggested that she wait a few more months to be sure this was what she wanted, and that they would be happy to come back then and see her again.

Further evidence that Evelyn was not in the business of encouraging people to take their lives came on a tape of her conversation with an RCMP undercover agent posing as the goddaughter of Monique. The tape and the undercover operation — supposedly the key piece of evidence for the prosecution — showed, by secretly recording Evelyn’s unguarded comments, that she was a woman motivated only by the desire to help people in distress, and that she did nothing to encourage suicide. So, with Brenda’s testimony and the undercover tape, ‘abetting’ was never in play.

The Crown’s case in regard to Monique Charest’s death was that the suicide had been aided by the provision of equipment and sedatives by Evelyn Martens. The evidence for this was circumstantial. The Judge allowed that circumstantial evidence could be used for conviction, but only if that if that evidence led to only one reasonable inference — that Ms Martens had assisted. If other reasonable inferences could be drawn from the evidence, then the jury would have to find her not guilty, because of reasonable doubt.

The Crown built its case partly on the evidence that Ms Charest had phenobarbital in her blood, among other drugs, and no prescriptions for that particular drug had been given to her by Dr Kerswell, her doctor, and no phenobarbital vials were found in her apartment after her death. However, Kerswell had been her doctor only since 1999, and no earlier medical records were available. One expert Crown witness indicated, when questioned by the Defense, that he had seen phenobarbital pills retain their potency for forty years. Moreover, because no criminal charges were anticipated immediately after the suicide, which had been taken for natural death, the apartment was not secured in any way. Monique’s friend and executrix Wendy Hepburn had cleared it out the next day. Hepburn’s husband and son had stayed in the apartment the night after the death, apparently for security reasons. Mrs Hepburn said she did not know who had keys. Children from the Hepburn family were seen running around in the apartment the morning after the death. So with all of this it was difficult to make a convincing case that Evelyn had brought, and removed, the drug. Who knows if Monique had had it in her apartment, or what might have happened to the bottle afterwards?

Somewhat more problematic for the Defense was the matter of the equipment, particularly the ‘exit bag.’ It was acknowledged by the Defense that Ms Marten and Ms Hurn had taken a satchel to the apartment, but claimed that it was empty and was for the purpose of removing the equipment that Monique already had. The reason for the removal was that Monique had indicated that she did not want the Church to know what she had done, apparently referring to the Catholic Church. She had been a nun earlier in life, though while in Duncan had associated mostly with a United Church which was only half a block from where she lived. The Crown said that the removal of equipment suggested guilt — that Ms Martens had brought the equipment and then removed it to hide evidence of her involvement. But removing the evidence did not prove guilt. It did not prove how the equipment got there; presumably ‘aiding’ could only be in play if Evelyn had brought the equipment, not if she merely removed it. And there were good reasons, other than guilt, for Evelyn to remove it. Not only was it Monique’s desire that she do so, there was also a concern, on Evelyn’s part, about possible prosecution. Leaving evidence of suicide might lead police to investigate possible assistance. Even if Evelyn had played only a passive role in supporting the suicide she still could be prosecuted, given the lack of precision in the law. So apart from the reason Monique had for concealing the suicide, Evelyn herself had quite a legitimate reason for what she did: fear of unjust prosecution.

So what evidence was there for Evelyn supplying the bag or the helium? Helium tanks are readily available in toy stores, for filling balloons. There were at least two places where tanks might have been purchased within two blocks of where Monique lived. Monique could easily have obtained one herself. The bag, though, was a different matter. It was admitted by Brenda Hurn that a bag with a tube attached and a Velcro collar to go around the neck was used. These are not available in toy stores. When police searched Evelyn’s house they found several such bags. Did it not seem likely that Evelyn was supplying these to people, thus ‘aiding’ suicides? This was probably the strongest part of the Crown’s case. But working against the inference the Crown wanted to make was the literature on assisted suicides that provided other possible sources for bags, and which urged people contemplating suicide to assemble all of the necessary drugs and equipment themselves, so as to be sure they are serious, and so as not to implicate those who might be there with them when they chose to die.

Although Evelyn might well have provided an exit bag for Monique, there was no way to prove that she had, and there were other reasonable possibilities that could be inferred by the evidence. Monique could have obtained the bags elsewhere, as the literature which she had had in her possession had recommended. So an unbiased jury could not really come to the conclusion, beyond a reasonable doubt, that Evelyn had brought the bag. Moreover, jury members, even if they did believe Evelyn had provided the bag, might well see the action as a humane rather than a criminal one. Jurors have in the past ignored laws they felt to be unjust. In this case, though, the actual evidence was so weak that jurors would not likely be put to this test of conscience vs strict legality.

Monique’s health

The Charest charge was the stronger of the two. Leyanne Burchell, the other woman who died in Evelyn’s presence, was in the last days of her life, and there was less chance that anyone on the jury would think that her death was premature. Monique’s health, however, was a matter of extended debate in the presentation of evidence. This proved to be an annoyance to the Judge who could not see the relevance to the charge of aiding or abetting suicide. He was right about this, in a technical sense: Evelyn’s guilt or innocence, according to law, did not depend on whether or not either of these suicides were premature, but on whether or not Evelyn had aided or abetted them. The two women could have been in the best of health and the legal question would be the same — did Evelyn aid or abet one or both of them?

But juries consist of people who can and do make decisions on all sorts of extra-legal grounds. The arguments on the state of Monique’s health could have had a direct bearing on how the jury saw the case. If Monique had been in good health then the jury may have been more inclined to think that Evelyn was remiss in not doing more to prevent the suicide, and more inclined therefore to see Evelyn’s actions as encouragement. Though the prior health of the deceased ought not to have had an influence on any juror’s decision, a guilty judgment was more likely on the part of any juror who had felt that Monique should not have died. It was unlikely any juror would have felt that about Leyanne, given the grim testimony about her illness. Monique, though, could have gone on living for an indefinite period of time.

Furthermore, from the sound of early witnesses in the trial one would have thought Monique to be in good health. A neighbour, Lorna Kately, and a friend, Denise Norbury, both gave testimony suggesting that Monique had only minor ailments. Dr Kerswell, Monique’s doctor, came in to testify on the third day of the trial. Initially his testimony seemed to confirm the impression that Monique had a few problems but was basically all right. She was a little overweight, she had thyroid condition, and she had reflux disease. He also referred to some depression and chronic back pain due to a degenerative spinal disease that caused narrowing of the spinal column. He said Monique also believed she had a disease called porphyria, but he had his doubts. When asked if any of these were fatal conditions he said no. He added that porphyria sometimes is, but a test Monique had taken had come out negative. He also allowed that Monique had had a blood clot (pulmonary embolism) on her lung in December of 2000, and she had been hospitalized then and he had seen her at the hospital. He had prescribed drugs for her reflux and for her thyroid condition, blood thinner for her embolism, and morphine for her back pain. He also gave her something for her depression but didn’t think she took it. Asked by the Crown if she had any terminal disease Dr Kerswell said, “not that I am aware of.”

By this time a picture of a woman with some health problems, none of which were terribly serious, had emerged. The defense had some work to do here, and in cross examination Catherine Tyhurst pointed out that Dr Kerswell had signed a “Do Not Resuscitate” form for Monique. These are standard forms used by terminally ill people who do not want efforts made to bring them back to life, should they lose consciousness and begin to die. The forms specify that the patient must be terminally ill or “be near the end of their natural life.” Catherine pointed out that Monique was only in her 60s and could not be seen to be of an age where she could be considered to be near the end of her natural life, so signing the document must have indicated that in Kerswell’s judgment Monique was terminally ill. The document requires a doctor’s signature three times, and concludes with a statement that the order reflects his medical opinion. So which was it, terminally ill or not? Dr Kerswell’s explanation of this discrepancy was that she really was not terminally ill, but there were only a limited number of forms and sometimes they did not exactly fit the circumstance.

“You could have written something on the form to fix it, couldn’t you?” Catherine asked. “But you didn’t, did you?”

“No I didn’t,” he replied.

Catherine then proceeded, in her cross examination, to take a close look at Monique’s condition. Catherine discussed the condition that Monique strongly believed she had: acute inter­mittent porphyria. This disease affects the nervous system and electrical pathways in the body, and death can result from difficulties in breathing. It can get worse if undiagnosed, and certain drugs, including phenobarbital that was found in Monique’s blood, can exacerbate the condition. The symptoms include burning of the skin, red urine, muscle pain and weakness, dizziness, cramps, shortness of breath, abdominal pains, nausea, tingling on the face, and mental distress sometimes leading to psychosis. It may be an inherited disease, and Monique’s father had died from it.

Dr Kerswell agreed that Monique had, at times, complained of burning feeling in her skin, red urine, muscle pain, dizziness, cramps, shortness of breath, abdominal pains, nausea and face tingling. Some of these she had complained of frequently. Her shortness of breath seemed to be getting worse and more frequent. She was anxious when she visited Dr Kerswell and very concerned about her health. He gave her antidepressants from time to time. He agreed that Monique herself was absolutely convinced that she had acute intermittent porphyria, and that he had previously agreed she should see a specialist. However, the closest one was in Winnipeg and the logistics of getting there were too difficult. She did not have much money and her back pain made it difficult to travel. Dr Kerswell agreed that Monique had complete belief that she had this disease and that the only help for it could be found in Winnipeg. He agreed that she found this discouraging. He also agreed that she was very concerned that some of the medications she was taking for her other diseases would exacerbate the porphyria.

The exchange clearly demonstrated that Monique believed she was terminally ill, and that she had a written medical opinion stating that she was, from Dr Kerswell. This directly contradicted the impression left after the Crown’s questioning of Dr Kerswell and the two other witnesses. Even though that was not the legal issue in question — Monique had the legal right to commit suicide whatever her condition, and Evelyn did not have the legal right to aid or abet, whatever Monique’s condition — the issue of Monique’s health could well weigh heavily on the jury and its attitude toward Evelyn. A less sympathetic jury might be more inclined to view aid and abet in broader way, or to find the Defense’s case less believable, increasing Evelyn’s vulnerability to a guilty verdict. Catherine Tyhurst’s cross examination of these witnesses, in particular Dr Kerswell, may well have been crucial to her client’s case.

Leyanne Burchell

There was no doubt regarding the severe condition Leyanne Burchell was in when she took her life. Dr Lutsky, her family physician, had seen her on June 19, 2002, shortly before her suicide on June 26, and he described her condition then as being close to death. He said that her stomach cancer had spread to her bowel and was progressing toward a total obstruction that would prevent her from eating. The blockage was too high up to allow the use of a bag to collect food that she swallowed. If she tried to eat it would just cause her to vomit. When complete blockage occurred she would not even be able to swallow her own saliva. There was nothing that could be done to prevent her death and Dr Lutsky thought she might live another 30 days.

Leyanne’s abdominal pain was so desperate, her sister Denise Huguet testified, that morphine no longer could control the intense pain. Leyanne developed her own way of coping with the pain by using a scalding hot water bottle on her abdomen. This added a new pain that distracted her from the unrelenting internal agony, but the bottle was so hot it actually burned her skin and turned it black. If you were around her when she did this you could smell the burnt flesh. Denise said that Leyanne was terrified about the possibility of internal gases trapped by the blockage. Her doctors had said this might cause her to explode from inside.

After listening to this compelling, grim testimony, who could have thought that Leyanne should have gone on living? Members of the Euthanasia Prevention Coalition, that’s who. Coalition representative Beverly Welsh is a retired palliative care nurse who attended most of the trial and frequently spoke to the press, and anyone else who would listen, about how tragic it was for family and friends when someone took their own life, and about how about all that was needed was more palliative care. Interestingly a number of Leyanne’s family and friends, including her mother, attended parts of the trial, not because they resented what Evelyn did, but because they were deeply grateful to her. The Coalition, though, would have had Leyanne go on with her suffering.

The Coalition, and others like them, would make no concession or allowance for fact that Leyanne was in such terrible condition by the time she took her life. They claim that their opposition to suicide, and to the idea of helping someone with it, is based upon concerns such as the sadness of friends and family left behind, the notion that with proper care these people could still lead rewarding lives, and the fear that taking any lives, whatever the condition of the person, is to get on a slippery slope to wanton murder. Some suspect, however, that these concerns are all pretexts, used to shame, bully and frighten people into opposing any sort of assistance in dying. The absolute, uncompromising nature of their opposition to suicide, even for someone like Leyanne Burchell, suggests that it really comes from another source that has nothing to do with the reasons they normally give. The Coalition’s harsh stance toward people like Evelyn Martens sounds a lot like it comes from a literal reading of ancient scriptures: that it is a grievous moral sin to take or assisting in taking a human life, even one’s own life. Only God, such people believe, can do that. It is all murder — suicide, aborting a foetus. Such arguments come from fixed religious beliefs that are not subject to any modification or concession whatsoever, regardless of what argument, or evidence, or potentially mitigating human tragedy is put before them.

the undercover operation

Leyanne Burchell’s suicide was different from Monique Charest’s in that she was much closer to death when she ended her life, and also in how the death apparently occurred. Forensic pathologist Dr Charles Lee from Vancouver General Hospital, who conducted an autopsy on Leyanne’s body, stated that he believed the cause of death to be a drug overdose. Leyanne had taken what Dr Lee believed to be a lethal dose of a mixture of several different drugs, with a very high level of morphine in her blood, plus other drugs that would likely increase the effect of the morphine. There was no direct evidence that she had used helium or an exit bag, though the Crown tried hard to make that inference. Two empty helium tanks and an apparently used exit bag were found in Evelyn’s vehicle when she was arrested later on the evening of Leyanne’s death.

On June 26, 2002, Evelyn came to Vancouver to be with Leyanne. Evelyn left her Langford home, just outside of Victoria, around 7:00 am that morning, not realizing that she was being followed by three unmarked police cars with RCMP members from the Duncan detachment. Following up on suspicions they had developed about Monique’s death, and Evelyn’s possible involvement in that, the Duncan RCMP detachment had arranged that day to engage in an undercover operation designed to produce evidence that Evelyn had, months earlier, assisted in Monique’s suicide. The RCMP officers had no idea why Evelyn was going to Vancouver, but knew that she was going because of taped telephone conversations between Evelyn and an undercover agent. The agent had posed as the goddaughter of Monique, and had arranged to meet Evelyn to discuss her godmother’s death.

The agent, whom I will refer to as Corporal Smith, since there is a Court Order forbidding the use of her real name, had been with the RCMP for 28 years, working in undercover operations for about the last 20. There is pool of such agents who can be called into particular investigations when needed. She and Corporal Wilton of the Duncan RCMP planned the operation, looking at biographical information on Monique and working out a plan. Corporal Smith was to pose as Monique’s goddaughter, living in Manitoba, and planning to come to Vancouver to take a holiday on a cruise ship to Alaska. She was to claim that she got Evelyn’s name from Monique’s personal effects.

On June 20, 2002, at 1:22 pm, Corporal Smith tried to contact Evelyn by telephone from Vancouver, but only got her answering machine. She just hung up that time but phoned again a few minutes later and left a message, and a fake Manitoba return phone number that would automatically be rerouted to Smith in British Columbia. She tried again at 4:13 pm and left a second message. She got no response from Evelyn that night, so called her again the next day, and did succeed in reaching her. Smith talked about the possibility of coming to Victoria to see Evelyn, before she left on her cruise to Alaska, and discussed where she might stay when she got there. Evelyn offered to find a place for her, and to pick her up at the ferry.

Evelyn spoke to me during a break in this part of the court proceedings, after a recording of the phone conversations was played, but just before the tape of the meeting between Evelyn and Corporal Smith was played.

“This is the worst part for me,” she said, “having to listen to these tapes. I’m such a patsy.”

Evelyn’s comments unnerved me — why was it the worst part for her? (She had been through it twice before in preliminaries). I thought maybe there was something here that might really hurt her. As it turned out the recordings were a key point in the trial, but not in the way the Crown had hoped, or that Evelyn had apparently feared. It was the worst part for Evelyn because she was embarrassed by being fooled and she did not like the sound of her own voice. And the Crown was treating it like prime evidence against her, so she was worried about how the jury would react to it. But she needn’t have worried about any of it.

Evelyn had an appointment in Vancouver on the 26th which coincided with the time of the goddaughter’s visit, so they arranged to meet while she was there, instead of in Victoria. Evelyn happened to be going to Vancouver to attend the suicide of Leyanne Burchell, but the police did not know anything about that. Three police officers trailed Evelyn from her home on the morning of June 26th, following her onto the ferry, observing her on the ferry, and then following her off the ferry and into Vancouver. The three separate police vehicles, staying in radio contact with each other, were able to keep her in sight most of the time. They tracked her to Leyanne’s residence on West 22nd Avenue and then kept up surveillance of the house as Evelyn went in for about an hour.

Later that day the Vancouver police found Leyanne’s body, and they quickly got together with the three officers from Duncan to review what had happened. One of Duncan’s officers, on hearing that another suicide had taken place, with Evelyn in attendance, while she was under surveillance, said “Holy Shit!” Although they had intended a much more extensive undercover operation, hoping to gather in what they apparently believed to be a network of international death conspirators, they decided they could wait no longer. They decided to arrest Evelyn as soon as possible.

After Evelyn left Leyanne’s house she contacted Corporal Smith again to arrange to meet. Smith had set up a cell phone number at which Evelyn could call her at any time. The police officers involved had wanted to lure Evelyn to a downtown hotel which they had wired, but Evelyn was reluctant to drive into an area she was not familiar with. “I’ll get lost,” she repeated apologetically. So Smith agreed to come over to the neighborhood where Evelyn was, and Evelyn suggested a coffee shop she could see from where she was phoning, ‘The Grind’ on the corner of 26th and Main.

“I’ll be wearing green shorts,” Smith said. She arrived a short while later, in her green shorts, to find Evelyn sitting outside at The Grind. They talked for about an hour as a secret recording was made. There was a lot of background noise from vehicles, and it was hard to hear everything as it was played in court. A transcription was provided to jurors, so that they could follow the discussion more closely. With some difficulty, and after trying for about a month and having to get a court Order from the Judge, I was able to get a copy of the transcript. I subsequently wrote a detailed review of the undercover interview which, though interesting and highly relevant to the outcome of the case, is too long for this magazine. It will be available on the Humanist in Canada website.

Listening to the recording in Court, though difficult to hear, was an odd experience. Because of what Evelyn had said to me, and because it had been mentioned in the Crown’s opening statement as a key piece of evidence, I was expecting a problem. But as it went on I began to think that this sounds like evidence for Evelyn, not against her. At one point Evelyn said “[Monique] did it herself.” Regarding possible personal gain, Evelyn was adamant about taking only expenses. Monique had pressed Evelyn to take things but Evelyn had not wanted to, eventually agreeing to a small memento she now wanted to pass on to the goddaughter’s children. Evelyn said she helped people just because it was “something I had to do.” She indicated that she not only did not encourage people to take their lives, but urged them to delay and think about it some more. She gave no indication of providing any drugs or equipment to aid in the suicides. Moreover, the recordings convincingly showed that this was a good-hearted woman, and that the police were cynically taking advantage of her kindness. It was hard to imagine any juror supporting this prosecution, after hearing the undercover tape, even if the Crown had been able to show that, technically, she was guilty.

After the tape finished, Crown Counsel Neil Mackenzie asked Smith if the person she had talked to was in the courtroom. Having not looked Evelyn’s way previously she turned and pointed to Evelyn, sitting about ten feet to her left, and coldly described the clothes Evelyn was currently wearing.

I was sitting directly behind the witness box in the gallery reserved for the press. I was about eight feet from the witness, and maybe twelve from Evelyn. That pointing at Evelyn, the describing of her as an object, gave me the creeps. I wondered how Smith could so callously take advantage of an elderly woman’s kindness and generosity. I suppose I could see doing this to a drug dealer or a murderer, but to Evelyn Martens? Police work requires one, at times, to be detached, but it is hard to imagine doing something like this, in such a cold, calculated fashion, to a kind-hearted grandmother.

Smith’s pointing toward Evelyn in the Courtroom, and her cold description of her, may have been calculated to have an effect on the jury — to encourage them to see Evelyn as a criminal. But it was a bad calculation. This unnecessary and heartless gesture, and all of the undercover operation, seemed to me to have entirely backfired. What decent human being could sympathize with any of this operation? Who could still see Evelyn as a criminal, after listening to her on the tape? The Crown’s trump card was, instead, Evelyn’s.

a bad law

Even with such a weak case, against a person who is clearly not a criminal, the prosecution had been pursued by the Crown. In addition to the costs to Canadian taxpayers, and more importantly, it cost an innocent woman (and her supporters) over $200,000, leaving her seriously in debt, subjected her to two and a half years of harassment, and caused terrible worry to her and to her family and friends. A law that allows such an egregious injustice must be changed.

But there is an even more compelling reason to change the law. One should be under no illusion that the law as it stands imposes an intolerable cruelty upon many Canadians — it prevents them from delaying their suicides until they are too disabled to do it themselves, it prevents them from getting competent assistance to ensure that the job is not botched and they are left alive, perhaps in worse condition than before, perhaps physically unable to then to finish the process, and it removes the comforting and consoling presence of other humans when the death occurs. It demands that one must choose to die alone, in a terrible loneliness, because those who might offer the solace of a human hand to hold, in the last few minutes of life, might be prosecuted if they did so. Ask Evelyn Martens. We treat no other animals in such a cruel manner; we treat only humans in this way, humans who because of consciousness may well suffer the most of any species.

a scary moment

As the jurors continued to deliberate, I began to feel quite worried. Clearly Evelyn’s friends and relatives were uneasy as well. As one person pointed out, all that was needed for a hung jury was one fundamentalist and one atheist. And a hung jury would be no victory for Evelyn, as a new trial might be held, and she would have to go through the trauma all over again. But Evelyn might well be found guilty, and something happened around noon that made a guilty verdict seem more likely. The jury came back into the courtroom to ask two questions:

Can members of the jury base their decision on one piece of evidence, namely the taped conversation between Ms Martens and the undercover agent? Is this enough to reach a verdict without any further evidence to support it?

This was the first insight into what was going on with the jury, but what did it tell us? The questions suggested that one or more jurors were hung up on something in the undercover tapes, but what was it? Was there something that was viewed as incriminating, say the statement by Evelyn that she had ‘helped’ people who wanted to die? Was, instead, the tape exculpatory, as I had thought it had been, and one or more jurors thought that this alone was enough to find her innocent? And was it a single idiosyncratic position, or something that concerned many, or most, or all of the jurors?

My first reaction, though I did not say it to Evelyn, was that at least one juror thought there was something inescapably incriminating on the tape. I asked what the others thought it meant. Les Poelzer, Evelyn’s youngest son, who had given up his job to attend the trial, was particularly worried about one statement Evelyn had made in the undercover interview, speaking of Monique’s death:

“She just didn’t want to be alone. She didn’t want to wake up and still be here. And that’s where I came in.”

It was conceivable that some jurors might have taken this as equivalent to an admission of guilt, because it suggested that Evelyn would have taken action if necessary. The phrase “And that’s where I came in” particularly worried Les.

Another possibility was another statement Evelyn had made, again speaking of Monique:

“But she was so happy we were helping her with it [the suicide]. She … I’ve helped other people and I’ve never had anyone that wasn’t very, very happy to go.”

This was a direct admission of ‘helping,’ which someone might take as admission of guilt. After all isn’t helping the same as aiding? But the Judge had clearly narrowed the definition of aiding to be more than, for example, just being there to offer comfort, which is what Evelyn suggested a number of times is all she had done. But, still, a juror could have interpreted the statement as an admission of guilt.

And it was possible that the opposite thing had happened — that one or more jurors found the tape so compelling, that they could not possibly find this woman guilty, regardless of whatever else the Crown presented.

After lunch the Court reconvened, without the jury, to discuss the questions. The Crown and Defense each made presentations about what should be said to the jury. In the end the Judge called the jury back in, explained the difficulties they were having about the precise meaning of the questions. He reread some of instructions from the previous day, where he had explained the role of the jury, and then he told them that if they based a guilty verdict on one piece of evidence they could do so long as they were satisfied that the single piece of evidence was sufficient to prove guilt.

the verdict

It had been a worrying day, with the strange question from the jury, and with the uncertainty about what was going on. What indeed would the rest of the day bring? Were these the last few hours of Evelyn’s freedom? With the weeks of testimony, and long hours of waiting, and the scrums with media, and the talks in the corridor during breaks in proceedings, and while we all waited for a verdict, it was difficult to realize that it might suddenly end, at any moment. It felt more like it was just something that was going to drift on indefinitely. But we knew, of course, that very serious discussions were taking place amongst the jurors, and that sooner or later they would finish their deliberations, and a verdict would be rendered.

A number of thoughts kept running through my mind that afternoon. Why had the Crown pursued the thing in the first place? How was the public interest being served? How could they have thought they would get a guilty verdict based on the weak evidence? But maybe the jury saw it differently. Maybe they, like the Euthanasia Prevention Coalition, would see Evelyn as a murderer. Beverly Welsh continued to look alarmingly confident.

I wondered if any of the jurors had heard or seen anything from the Coalition. Certainly Beverly Welsh had spoken to the media at every opportunity. Some felt she was hoping to get at the jury, which had not been sequestered, trying to create the sense that Evelyn was guilty. A Court Order prohibited the publication of such opinions, but she did get the Vancouver Sun, on the last day of the trial, to publish her comments about the desirability of sending Evelyn to jail. A contempt of court charge was entered against the Sun, but later was dropped.

But what was happening in the jury room? That was all that mattered at this time.

Late in the afternoon at about 5:00 pm there was a bit of activity in the corridor — something was happening. I caught Catherine Tyhurst going into the Judge’s chambers and she said all of the lawyers had been called in. She did not know what was going on.

Then, maybe twenty minutes later, the Court reconvened. I went to my usual place up in the press box, with all of the other reporters and observers sitting in a now-crowded gallery. I was expecting that the lawyers would be responding to some issue the Judge had brought up in Chambers, but then the jury filed in. Then it slowly dawned on me that this was it. It was happening now. The jury had decided. Everyone in the Courtroom stood as the Judge entered.

Evelyn stood up, with perfect calmness, seemingly unafraid. Les, her son in the gallery, had his hands up to his mouth. None of us knew, or were confident, about what was going to happen. I wondered, if the verdict was guilty, would Evelyn be taken away in handcuffs?

The ending came suddenly. The Clerk read out the first of the two charges — the Charest charge, the problematic one. I glanced at Evelyn; she was perfectly steady. The jury Foreman said “we find the defendant not guilty.”

And in that one wonderful, terrifying instant, we knew that Evelyn had won. And we knew that, in a world where it is too rarely so, human decency and kindness had won.

Gary Bauslaugh is the Editor of Humanist in Canada.