Humanist Perspectives: issue 152: Unfinished Business

Unfinished Business
by Gary Bauslaugh

Much unhappiness and suffering in the world is caused by episodic natural events, like the tsunami in Southeast Asia. But there is another sort, an avoidable sort, that comes instead from human ignorance and superstition. This manufactured misery is something we, and our politicians, should oppose at every opportunity.

In October and November of last year I attended the trial of Langford resident Evelyn Martens, accused and then found not guilty of assisting in the suicides of Monique Charest of Duncan, BC, and Leyanne Burchell of Vancouver BC. The acquittal came on November 4, 2004. The period for appeal expired in December, and Ms Martens is now no longer under threat of going to jail for the rest of her life.

The ongoing human suffering that is caused by the law under which Ms Martens was charged should now be reexamined by Parliament. The trial highlighted the problems this law creates for many Canadians, and it demonstrated the terrible injustices we create when our laws make it possible to prosecute good people for acts of human kindness.

First we should ask, why was this trial pursued at all? Ms Martens was found not guilty of either charge brought against her. This decision was based upon the unanimous, considered assessment of all the evidence by twelve neutral jurors. That in itself is not a source of particular concern about the decision to go to trial – accused people are often found not guilty. Prosecutions are carried forward when the Crown feels there is good chance of a guilty verdict, and this is necessarily a matter of some uncertainty. But after attending the entire trial and carefully assessing all of the evidence, I could see no reasonable grounds for prosecution.

One can, perhaps, understand the aggressive pursuit of Ms Martens by the RCMP, though they appeared to become overexcited by the evidence they uncovered. They certainly seemed, at times, to be unnecessarily harsh with Evelyn – the presumption of innocence is a concept that does not always make its way down to the front lines in police work. But the police do spend much of their time their dealing with criminals, and are understandably hardened by their experience. Crown attorneys, though, are more removed from the fray, and they are supposed to make dispassionate, intelligent assessments of the evidence. What were they thinking?

They were thinking that our law on assisted suicide, Section 241(b) of the Criminal Code of Canada, should be interpreted very broadly. The law specifies that a guilty verdict depends upon establishing that the accused either aided or abetted a suicide, but prior to this trial the parameters of this were unclear. The Crown apparently believed that providing information on how to commit suicide, or even just being with a person who does so, would constitute assistance. However, the Judge presiding over the trial, Barry M Davies, made it clear that more was required – provision of the means for suicide or active involvement in the actual act of suicide. Simply attending a suicide, to offer comfort, or providing information, does not constitute assistance. And, really, how could any sensible person think it should be otherwise.

A lot of public money was spent on this trial. More importantly, an innocent elderly woman was arrested, jailed for a number of days, transported in leg irons, and left to worry (for two and a half years) that she might be sentenced to as much as 28 years in jail. Ms Martens was also forced to go seriously into debt to cover her legal expenses. The public has a right to know why this happened, though it seems unlikely that the real story behind this unwise prosecution will ever be revealed by the Crown attorneys involved in the decision.

We also might ask how the public interest was served by this trial. Did the Crown believe there was some need to protect public safety in having Ms Martens prosecuted? Even if she had assisted in some way, which the Crown entirely failed to prove, is the safety of Canadians threatened by those who would help end the intractable and intolerable suffering of terminally ill people, people who can find no relief, are maxed out on morphine, and are desperate to end their lives?

Was, instead, this an exercise in clarifying a bad law, a law that left and still to some extent leaves the parameters of legality unclear? It is a law that still leaves open the possibility of prosecution for simply attending a suicide and trying to mitigate the terrible loneliness of a person who would otherwise die alone. It is a law that encourages premature suicides, for people afraid of becoming too disabled to do the act themselves, and knowing that anyone who might help them would be subject to prosecution. And it is a law which leaves many in desperate suffering, unable or not knowing how to end their plight.

If clarifying or changing this bad law was the purpose of the trial, then it might have a useful outcome, as Justice Davies’ interpretation will surely make attempted prosecutions of people like Evelyn Martens less likely. And Canadian Justice Minister Irwin Cotler has indicated that he will now reopen the issue in Parliament. But why did one woman have to bear the brunt of the cost, not to mention the mental anguish, of this legal exercise? If this was a matter of sorting out a bad law, surely then, at the very least, Ms Martens should be compensated for her own considerable legal expenses.

With all of the questions surrounding this trial, one is left wondering if religious extremism had any influence on the decisions that were made, just as it did in the prosecutions of Henry Morgenthaler. We live in a society in which, for many reasons (not the least of which is to protect freedom of religious belief), the actions of the State are supposed to be independent of the idiosyncrasies of any particular set of religious beliefs. In the case of suicide, certain religions have a fixed opposition that comes from a conviction that only God can determine when a person should die, and awful suffering is just to be endured. This belief, and the influence its adherents may have on public policy, results in cruelties that we would bestow on no other living creature. An organization called the Euthanasia Prevention Coalition, for example, has referred to Ms Martens as a murderer, and has called for her prosecution. It would be of great concern to the majority of Canadians if this group, or any group holding religiously-determined beliefs about suicide, had influenced the decision to prosecute.

Supporters of a better law in regard to assisted suicide recognize that there is a need for safeguards in legislation about suicide. There is a need for an open, monitored process that seeks alternatives to suicide and ensures that it is only a last resort in cases of terminal or intolerable illness. Such a civilized law exists in other places in the world. This is not an extreme view, as it is sometimes characterized, but a moderate position that will lead to better counseling for terminally ill people, counseling that will in some cases steer people away from suicide. These are difficult and heart-wrenching matters that need to be openly discussed with family and with care-givers, free of the threat of heavy-handed intervention by the law, free from the extremists who say that, whatever the safeguards, the voluntary ending of any human life is unacceptable.

We should try to find ways of easing suffering in the world, not needlessly increasing it. Helping people end their lives with dignity is one such thing we can do. Any of us may, some day, wish it so for ourselves.