A NON-PUBLICATION ORDER IN THIS PROCEEDING HAS BEEN ISSUED UNDER THE CRIMINAL CODE OF CANADA, SECTION 648(1)
Court File and Parties
COURT FILE NO.: CR-16-99-00 DATE: 20170413 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – JOANNA FLYNN Respondent
Counsel: B. Bhangu and S. Tarcza, for the Crown M.S.G. Peeris, for the Respondent
HEARD: April 4, 5 and 6, 2017
RULING ON APPLICATION REGARDING SCOPE OF EXAMINATION OF HOSPITAL WITNESSES
QUINLAN J.:
Overview
[1] Joanna Flynn was the registered nurse on duty on March 2, 2014 in the Intensive Care Unit (ICU) at the Georgian Bay General Hospital (GBGH) where Deanna Leblanc was a patient. Ms. Flynn is charged with manslaughter and criminal negligence causing death in relation to her termination of Ms. Leblanc’s life support system.
Nature of the Application
[2] The Crown seeks to examine the physicians and nurses employed at GBGH on March 2 and 3, 2014 on the following areas, all in relation to matters as they existed on March 2, 2014:
- Whether they were aware of the GBGH written policy concerning Discontinuation of Life Support System (DLSS policy); a. If they were so aware, their understanding, experience and practice with it;
- Their general understanding with respect to the required processes that were engaged to discontinue life support in the GBGH ICU;
- Their experience with respect to discontinuing life support in the GBGH ICU;
- Their understanding and experience with respect to the role of doctors, nurses and other hospital staff in the GBGH ICU to obtain informed consent from substitute decision-makers in the context of discontinuing life support; and
- Their understanding and experience relative to who could pronounce death in the GBGH ICU.
Positions of the Parties
The Crown’s Position
[3] The Crown alleges that Ms. Flynn acted unlawfully in discontinuing life support without an order, permission or input from a physician and/or without informed consent from Mr. Leblanc, thereby committing manslaughter. With respect to the count of criminal negligence causing death, the Crown alleges that, by her conduct, Ms. Flynn demonstrated a wanton or reckless disregard for Ms. Leblanc’s life.
[4] The Crown argues that the evidence it seeks to adduce is logically and legally relevant to the issues before the jury. The questions lay the foundation for the norms and practices at GBGH so that the jury can judge Ms. Flynn’s actions in their proper context. The questions will show the jury what a reasonable person at GBGH does or would have done in the same circumstances. The reasonableness of Ms. Flynn’s actions has to be judged by reference to the standards and practices of her colleagues on March 2, 2014.
[5] The manner in which these decisions are made, including those under the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, is likely outside the knowledge and experience of the trier of fact. As such, the jury should hear from the actual ICU team members. In the absence of this evidence, the jury would have distorted facts and be unable to properly determine Ms. Flynn’s guilt or innocence.
[6] Insofar as the witnesses’ understanding and experience regarding who could pronounce death in the GBGH ICU, the Crown argues that this is an extension of Ms. Flynn’s unlawful act, extending from her first involvement with Mr. Leblanc when she approached him about discontinuing life support, and meets the test of relevance.
The Defence Position
[7] The defence does not dispute that after receiving information from other medical professionals and speaking with Mr. Leblanc, Ms. Flynn discontinued Ms. Leblanc’s life support without a doctor’s order. The defence admits that by removing Ms. Leblanc from life support, Ms. Flynn hastened Ms. Leblanc’s death. The defence acknowledges that, on March 2, 2014, there was a policy in force at GBGH dealing with the discontinuation of a patient’s life support system (DLSS policy).
[8] Ms. Flynn’s position is that the evidence the Crown seeks to adduce is not logically relevant to the matters in issue at trial. The proposed evidence cannot establish a standard against which to judge the reasonableness of Ms. Flynn’s actions. The requisite standard of care cannot be determined by survey; it requires expert evidence. Further, or in the alternative, whatever limited probative value this evidence may have is vastly outweighed by its prejudicial effect.
Analysis
[9] In its application, the Crown reviewed the evidence of the two internists and two registered nurses on duty on March 2, 2014 and the two registered nurses who came on duty the following morning. For the purpose of my ruling, it is not necessary to review the anticipated evidence.
[10] Three of the four nurses held supervisory positions, but the Crown does not seek to qualify them to give expert evidence. The Crown proposes to ask each of the witnesses about their awareness of the DLSS policy as well as their understanding of and experience with policies and processes related to discontinuing life support and obtaining informed consent in the GBGH ICU in the context of end-of-life decision-making.
[11] Evidence must be logically relevant to a matter at issue. This test has been described as “some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence.” [^1]
[12] To prove unlawful act manslaughter, the Crown must prove an unlawful act. An unlawful act is dangerous if a reasonable person, in the same circumstances, would realize that the unlawful act would likely put another person at risk of bodily harm. [^2]
[13] To prove criminal negligence causing bodily harm, the Crown must prove that: [^3] a. what Ms. Flynn did or failed to do showed a wanton or reckless disregard for the life or safety of Ms. Leblanc, and b. what Ms. Flynn did or failed to do was a marked and substantial departure from what a reasonably prudent person would do in the same circumstances.
[14] The defence acknowledges that the DLSS policy was in place on March 2, 2014. It is not disputed that the witnesses can testify about its location in a binder in the ICU. Whether or not other nurses and the physicians at GBGH were aware of the DLSS policy, their experience with it and their understanding of and experience with the processes engaged in discontinuing life support does not assist the jury with the issues to be decided. The evidence of hospital witnesses with respect to whether they would have required (on the part of nurses) or issued (on the part of physicians) a doctor’s order prior to discontinuing life support, or how they would have obtained informed consent to terminate life support from a substitute decision-maker, does not assist in determining the lawfulness of the act [^4] or what a “reasonable” or “reasonably prudent” person in the same circumstances would have done.
[15] It is against the standard of a “reasonable person” that the jury will have to assess the dangerousness of any unlawful act. It is against the standard of a “reasonably prudent person” that the jury will have to assess whether Ms. Flynn’s conduct was a marked and substantial departure from the norm. [^5] The “reasonable” or “reasonably prudent” person may be particularized to the circumstances of the accused and the nature of the conduct at issue. [^6] In this case, that may be the reasonable or reasonably prudent member of an ICU team, whether a nurse or health practitioner. It is against this standard, rather than against the standards and practices of Ms. Flynn’s colleagues at GBGH on March 2, 2014, that Ms. Flynn’s conduct must be judged.
[16] I agree with the defence that the understanding, experience and practice of four other nurses and the physicians on duty at GBGH cannot be relevant to determining the standard of care exercised by a reasonable or reasonably prudent person in relation to the discontinuation of life support and/or obtaining informed consent. This is so regardless of the need to consider “the same circumstances”. Evidence of that standard needs to come from an expert.
[17] The standard of care, whether on the basis of a member of an ICU team, a nurse or a health practitioner, is outside the ordinary knowledge and experience of the trier of fact. This standard needs to be assessed through expert evidence on accepted medical practices and on the basis of relevant statutory requirements. [^7]
[18] The Crown has not established that evidence as to who can pronounce death in the GBGH ICU will assist the jury in any issues to be decided, occurring as it did after Ms. Leblanc’s death.
Conclusion
[19] For the foregoing reasons, the Crown’s application in relation to the scope of examination of hospital witnesses is dismissed.
QUINLAN J. Released: April 13, 2017
Footnotes
[^1]: David M. Paciocco and Lee Stuesser, The Law of Evidence, 7th ed (Toronto: Irwin Law Inc., 2015) at pp. 30-31; R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at paras. 204-206; and R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 82. [^2]: David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed (Toronto: Thomson Reuters Canada Ltd., 2015), at p. 739. [^3]: Watt, at p. 652. [^4]: The DLSS policy did not state that a doctor’s order was to be issued before life support was terminated. [^5]: R. v. Anderson, [1990] 1 S.C.R. 265; R. v. Morrisey, [2000] 2 S.C.R. 90; and R. v. L.(J.) (2006), 204 C.C.C. (3d) 324 (Ont. C.A.). [^6]: R. v. J.F., [2008] 3 S.C.R. 215; and R. v. Beatty, [2008] 1 S.C.R. 49. [^7]: Ter Neuzen v. Korn, [1995] 3 S.C.R. 674, at para. 40.
Cited Cases and Legislation
Legislation
- Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A
Case Law
- R. v. Luciano, 2011 ONCA 89
- R. v. Abbey, 2009 ONCA 624
- R. v. Anderson, [1990] 1 S.C.R. 265
- R. v. Morrisey, [2000] 2 S.C.R. 90
- R. v. L.(J.) (2006), 204 C.C.C. (3d) 324 (Ont. C.A.)
- R. v. J.F., [2008] 3 S.C.R. 215
- R. v. Beatty, [2008] 1 S.C.R. 49
- Ter Neuzen v. Korn, [1995] 3 S.C.R. 674