A NON-PUBLICATION ORDER IN THIS PROCEEDING HAS BEEN ISSUED UNDER THE CRIMINAL CODE OF CANADA, SECTION 648(1)

BARRIE COURT FILE NO.: CR-16-99-00 DATE: 20170413

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – JOANNA FLYNN Respondent

B. Bhangu and S. Tarcza, for the Crown M.S.G. Peeris, for Ms. Flynn

HEARD: April 3, 4, 5 and 6, 2017

Ruling on Application to Adduce Expert Evidence

QUINLAN J.:

Overview

[1] Joanna Flynn was the registered nurse on duty in the Intensive Care Unit (ICU) at 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.

[2] The Crown seeks to call expert evidence and to qualify Dr. Neil Lazar as an expert medical witness. Dr. Lazar would give evidence in the area of medical ethics relating to medical care provided in ICUs to assist the triers of fact in the following areas:

(i) Factors involved in the determination of death in the ICU from a medical, clinical and neurological perspective; (ii) Current accepted and reasonable practices on the part of ICU medical personnel related to discontinuing life support; (iii) Current accepted and reasonable practices on the part of ICU medical personnel related to obtaining informed consent from substitute decision-makers (SDMs) to discontinue life support orders; (iv) Current accepted and reasonable practices related to the process of pronouncing death in an ICU; and (v) The application of the above to the present case and the conduct of all hospital personnel who treated or dealt with Deanna Leblanc, with a particular focus on the conduct of Ms. Flynn leading up to the termination of life support and resultant death of Deanna Leblanc.

Evidentiary Background

[3] On Friday, February 28, 2014, Ms. Leblanc had day surgery on her knee at Southlake Regional Health Centre in Newmarket. On Sunday, March 2, 2014, early in the morning, Ms. Leblanc was in medical distress. Her husband, Michael Leblanc, called fire and ambulance. Ms. Leblanc’s vital signs were absent as she was removed from her home, before being loaded into the ambulance and as she arrived at GBGH at 4:47 a.m.

The Emergency Room

[4] Dr. Van Rooyen, the emergency room (ER) physician, immediately started efforts at resuscitation. The hospital contacted Trillium Gift of Life Network at 6:25 a.m. Dr. Van Rooyen considered that Ms. Leblanc was brain dead while in the ER. He could not comment as to whether the brain condition was reversible. Dr. Van Rooyen expected Ms. Leblanc to die because of the prolonged resuscitation.

[5] Dr. Van Rooyen spoke to Mr. Leblanc on at least three occasions and indicated to him that he did not believe his wife was going to recover. The first conversation Dr. Van Rooyen had with Mr. Leblanc was before Ms. Leblanc was stabilized. The purpose was to find out Mr. Leblanc’s wishes. The second time was after hospital personnel got a sustained heartbeat. Dr. Van Rooyen told Mr. Leblanc that the outlook was not very good and they would have to see what was going to evolve during the day. Dr. Van Rooyen conveyed to Mr. Leblanc that even when she was being transferred to the ICU, Ms. Leblanc’s condition was still critical.

[6] Dr. Van Rooyen had explained the gravity of the situation to Mr. Leblanc. Mr. Leblanc told Dr. Van Rooyen that he and Ms. Leblanc had two children. He asked him to try harder. Mr. Leblanc told Dr. Van Rooyen that he wanted the medical team to continue with the resuscitation. At one point, Dr. Van Rooyen told Mr. Leblanc that they “would try” for a few more minutes but, after that, medical personnel would have exhausted all efforts.

[7] By 8:00 a.m., Ms. Leblanc showed some spontaneous breathing and voluntary movement of her right hand, and by 8:45 a.m., she was transferred to the ICU and placed on a ventilator.

Transfer to the Intensive Care Unit

Dr. Fahy’s involvement

[8] Dr. Fahy, an internist, assumed care of Ms. Leblanc once she was transferred to the ICU. The working diagnosis, in his mind, was a cardiorespiratory arrest at home and a fatal pulmonary embolism.

[9] Dr. Fahy continued Ms. Leblanc’s care and spoke to Mr. Leblanc about the gravity of Ms. Leblanc’s condition and her poor prognosis. Dr. Fahy’s plan of care was to continue supporting Ms. Leblanc’s breathing and respiration, maintain her vital signs and see what evolved. Dr. Fahy does not recall if he discussed removing Ms. Leblanc from life support with Mr. Leblanc.

[10] Dr. Fahy “almost certainly” told Mr. Leblanc that Ms. Leblanc was brain dead, explained that her pupils were fixed and dilated, and that she had little to no urine output. He “almost certainly” told Mr. Leblanc that his wife would not recover. Dr. Fahy communicated his lack of hope to Mr. Leblanc, more than likely in those words and would have conveyed the gravity of the situation to him. Dr. Fahy’s approach was that given that Ms. Leblanc was 39 years old, he would not have discussed termination of life support on the day of the crisis.

[11] Dr. Fahy was aware of the GBGH policy on “Discontinuation of Life Support” (DLSS policy). Although he had not seen it in print, he understood that it was usually the physician who made the decision to terminate life support but that others, such as nurses and respiratory therapists, were to be involved.

Tracy Gutierrez’s involvement

[12] Tracy Gutierrez was the day nurse on duty in the ICU on March 2, 2014. At 3:00 p.m. she had a discussion with Mr. Leblanc and his mother about Ms. Leblanc’s grave condition and poor prognosis. Ms. Gutierrez told Mr. Leblanc that his wife was probably dying. Ms. Gutierrez told Ms. Leblanc’s family that the time might come where a decision needed to be made about a plan of care regarding advanced directives. She answered questions and gave support. Mr. Leblanc was teary and left the ICU abruptly.

[13] Ms. Gutierrez was familiar with the DLSS policy document and had seen it in the “Policies and Procedures” binder on a shelf in the ICU.

[14] At 7:00 p.m., Ms. Gutierrez transferred Ms. Leblanc’s nursing care to Ms. Flynn.

Dr. Dolezel’s involvement

[15] Ms. Leblanc’s medical care was transferred from Dr. Fahy to Dr. Dolezel, another internist. Dr. Dolezel examined Ms. Leblanc at about 5:00 p.m. He noted that her blood pressure was very low, her pupils were largely dilated, and she was unresponsive. He questioned Ms. Gutierrez about whether sedating or paralyzing medications were being administered in the afternoon, and was advised they were not. Dr. Dolezel decided to draw fluid from Ms. Leblanc’s knee.

[16] Dr. Dolezel told Mr. Leblanc that they “didn’t know why she was critically ill”. In his mind, he thought it was a blood clot. He ordered antibiotics to address the possibility of an infection. Dr. Dolezel had discussions with the family about Ms. Leblanc’s poor prognosis and the absence of brain activity. Despite the poor prognosis, it was his plan to continue supportive therapy.

[17] At around 7:15 or 7:30 p.m., Dr. Dolezel was at the nurse’s station looking at Ms. Leblanc’s medical chart on the computer. Ms. Flynn approached Dr. Dolezel and told him that Mr. Leblanc “wants to stop everything”. Dr. Dolezel told Ms. Flynn that “this was new”.

[18] Dr. Dolezel went to the ER to find a measuring tape to measure Ms. Leblanc’s knee. He then went into Ms. Leblanc’s room and observed that the ventilator was off. Ms. Flynn was there. She said, “Didn’t you know that the patient is dead?” Mr. Leblanc was not present; Ms. Flynn advised Dr. Dolezel that Mr. Leblanc had gone home.

[19] Dr. Dolezel did not issue any verbal or written order to terminate life support. At the time Ms. Flynn terminated life support, Dr. Dolezel had just secured a measuring tape to measure Ms. Leblanc’s knee.

[20] Dr. Dolezel was aware of the GBGH DLSS policy. He testified about his practice: to issue a written order; have several discussions with family or next of kin so that they could talk it over and not make a hasty decision, as the decision to terminate life support was to be made jointly with the family; and to have a respiratory therapist present when life support was discontinued.

Ms. Kennedy-McCormick’s involvement

[21] Sheila Kennedy-McCormick was a registered nurse working as a hospital supervisor at the time. She overheard a conversation between Dr. Dolezel and Ms. Flynn in which Dr. Dolezel told Ms. Flynn that, “he thought we should wait [to terminate life support] until Monday morning when Dr. Fahy returns.”

[22] Between 8:30 and 9:00 p.m., Ms. Flynn told Ms. Kennedy-McCormick that she had extubated Ms. Leblanc. Ms. Flynn stated that she did not want the family to remember Ms. Leblanc like this.

Wendy Mustard’s involvement

[23] Wendy Mustard was a registered nurse employed as the Interim Team Leader of the ICU. She arrived at work on Monday, March 3, 2014, and was approached by Ms. Flynn at about 7:30 to 8:00 a.m. Ms. Flynn told Ms. Mustard that there had been a difficult case over the weekend and that she had concerns about the care by the physicians. Ms. Flynn was concerned that the patient was brain dead and Dr. Dolezel was going to leave the patient on life support until the following morning for Dr. Fahy to deal with. Ms. Flynn advised Ms. Mustard that she had discontinued the ventilator and pronounced Ms. Leblanc dead. She confirmed that she did not have a doctor’s order to do so.

Sheree Noon’s involvement

[24] Sheree Noon was a registered nurse, employed as the ICU manager at GBGH. She went to work on Monday, March 3, 2014 and learned from Ms. Mustard about the events in question.

[25] Ms. Noon described the decision-making process for removing life support as a team decision with the doctor making the final decision. She was familiar with the DLSS policy document and its location in the ICU.

Information Provided to Mr. Leblanc

[26] Mr. Leblanc had been advised by the ER doctor that his wife was in very bad shape and that she had had a pulmonary embolism, but that they would keep trying to resuscitate her. The day nurses explained to him that the ventilator was taking over her breathing. He was aware that the situation was serious. Ms. Gutierrez told him they were doing everything to help her. The third doctor of the day, Dr. Dolezel, advised Mr. Leblanc that his wife was in rough shape, but they would do all they could. Dr. Dolezel told Mr. Leblanc there was no real sign of brain activity.

[27] Ms. Flynn told Mr. Leblanc that this was not his wife anymore, just her body. She said that there was no hope, that the only things keeping his wife alive were the machine and the drugs. In response to a question from him, Ms. Flynn replied that there was no chance. Ms. Flynn told Mr. Leblanc that his wife was “brain dead and was gone to heaven, looking down”. Mr. Leblanc felt that his world dropped out. He was in shock.

[28] Mr. Leblanc told Ms. Flynn that the doctor said they would not give up. Ms. Flynn indicated that it was just his wife’s body and that she would never come back. Ms. Flynn told Mr. Leblanc that she could shut the machine off or, according to Mr. Leblanc’s description of what Ms. Flynn said, his wife’s heart would “explode”. Ms. Flynn indicated that if the machine was shut off, Ms. Leblanc could go peacefully.

[29] Ms. Flynn asked Mr. Leblanc if she could shut off the machine and he said either “Yes” or “I guess so”. Mr. Leblanc brought their children in to say goodbye. Ms. Flynn shut off the machine.

Dr. Lazar’s Evidence

[30] The Crown called Dr. Lazar to testify at the hearing of the application and filed Dr. Lazar’s statement to the police and the transcript of his preliminary hearing evidence.

[31] The specific areas in which Dr. Lazar will be proffered to assist the court will be:

(i) When someone is considered “dead” from a medical, clinical and neurological point of view; (ii) The role of “vital signs absent” in the determination of death; (iii) What “brain death” is and its relevance to pronouncing death; (iv) The medical steps in determining when someone is brain dead and the role that sedating and paralyzing medications can play in this determination; (v) How the patient being on sedating medication might influence determinations about when to commence discussions with next of kin about terminating life support; (vi) The minimum amount of time that hospital ICU staff should wait before any decisions are made to terminate life support in the ICU and before any discussions should occur with family members; (vii) The current accepted and reasonable medical practices (for nurses and doctors) in terminating life support and obtaining “informed consent” from family members; (viii) Who can declare death in the ICU; and (ix) Application of the above to the fact situation in the case at bar.

[32] The evidence of Dr. Lazar that is relevant to this application will be dealt with in the course of my analysis.

Positions of the Parties

The Crown’s Position

[33] The Crown alleges that Ms. Flynn acted unlawfully in discontinuing life support without a doctor’s order, permission or input and/or without informed consent from Mr. Leblanc. The Crown alleges that the failure to do these acts shows a wanton or reckless disregard for Ms. Leblanc’s life.

[34] The Crown’s position is that the evidence meets all four criteria for admission specified in R. v. Mohan [1] and satisfies the two-step process recently endorsed by the Supreme Court of Canada (SCC) in White Burgess Langille Inman v. Abbott and Haliburton Co. [2]. The Crown alleges that the evidence is relevant to material issues at trial including the elements of both unlawful act manslaughter and criminal negligence causing death as well as potential defences that may be advanced by Ms. Flynn. The evidence is necessary, no exclusionary rule prevents the triers of fact from hearing it, and Dr. Lazar is properly qualified to give the evidence. Lastly, the probative value of the evidence exceeds its prejudicial effect.

The Defence Position

[35] Ms. Flynn does not dispute that after receiving information from other medical professionals and speaking with Ms. Leblanc’s husband, she discontinued Ms. Leblanc’s life support without a doctor’s order. She does not dispute that the removal of life support hastens death. Ms. Flynn does not take the position that Ms. Leblanc was neurologically brain dead when Ms. Flynn removed life support. Her position is that she had Mr. Leblanc’s consent to terminate life support.

[36] Ms. Flynn argues that Dr. Lazar’s proposed evidence does not meet the criteria for admissibility set out in Mohan because much of his proposed evidence is irrelevant; Dr. Lazar is not properly qualified to give opinion evidence in areas that meet the relevance criterion; and/or the prejudicial effect of Dr. Lazar’s proposed evidence far outweighs its probative value.

Legal Principles

Admissibility of Expert Evidence

[37] The SCC has reiterated the dangers associated with expert evidence and established increasingly stringent pre-conditions to its admission. In Mohan, the SCC sets out four factors that must be established for expert evidence to be admissible. In the more than two decades since, the “unmistakable overall trend of the jurisprudence…has been to tighten the admissibility requirements and to enhance the judge’s gatekeeping role.” [3] Today, the admissibility of expert evidence is determined by a two-stage process.

[38] At the first stage, the proponent of the evidence must establish the four threshold requirements set out in Mohan, namely logical relevance, necessity, the absence of an exclusionary rule, and a properly qualified expert. Evidence that does not meet all of these threshold requirements should be excluded. [4]

[39] If the proponent is able to establish that the evidence meets the threshold requirements, the inquiry then proceeds to the second stage. At the second stage, the trial judge must be satisfied that the probative value of the evidence outweighs its prejudicial effects. As Doherty J.A. stated in R. v. Abbey, the “trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence.” [5]

[40] Some potential harms, such as the risk of inordinate expenditure of time and money, exist in relation to any trial process. Others are of particular concern in jury trials, including what Sopinka J. described in Mohan as the:

[D]anger that expert evidence will be misused and will distort the fact-finding process. Dressed up in scientific language which the jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible and as having more weight than it deserves. [6]

[41] In addressing these dangers, the SCC has stressed the importance of the trial judge’s “gatekeeper role”, and the need to be vigilant in ensuring that expert evidence is not admitted unless the requirements at both stages are satisfied. In particular, the SCC has directed that the “admissibility of the expert evidence should be scrutinized at the time it is proffered, and not allowed too easy an entry on the basis that all of the frailties could go at the end of the day to weight rather than admissibility.” [7]

[42] The court retains discretion to exclude evidence where its prejudicial effect outweighs its probative value. In conducting a “cost-benefit” analysis of the proposed evidence, the trial judge must exercise a gate-keeping function. This will require an assessment of the “probative potential of the evidence and the significance of the issue to which the evidence is directed.” [8]

The Test of Relevance

[43] Relevance is a threshold requirement for the admission of expert evidence. [9] As evidenced by the cases below, relevance has different meanings. Watt J.A. offers a comprehensive description of relevance in R. v. Luciano [10]:

[204] Relevance is not an inherent characteristic of any item of evidence. Relevance exists as a relation between an item of evidence proposed for admission and a proposition of fact that the proponent seeks to establish by its introduction. Relevance is a matter of everyday experience and common sense.…An item of evidence is relevant if it renders the fact it seeks to establish slightly more or less probable than it (the fact) would be without the evidence, through the application of everyday experience and common sense.

[205] We assess the relevance of items of evidence in the context of the entire case and the positions of counsel. Relevance does not exist in the abstract or in the air: R. v. Cloutier, [1979] 2 S.C.R. 709, at pp.730-32. An item of evidence does not cease to be relevant or become irrelevant because it can support more than one inference: R. v. Underwood (2002), 2002 ABCA 310, 170 C.C.C. (3d) 500 (Alta. C.A.), at para. 25.

[206] To be relevant, an item of evidence need not prove conclusively the proposition of fact for which it is offered, or even make that proposition of fact more probable than not. What is essential is that the item of evidence must reasonably show, by the application of everyday experience and common sense that the fact is slightly more probable with the evidence than it would be without it: McCormick on Evidence (6th ed.), para. 185, at p.733.

[44] The logical relevance of the evidence is determined by asking the following questions:

(i) Does the proposed expert opinion evidence relate to a fact in issue in the trial? (ii) Is it so related to a fact in issue that it tends to prove it?

[45] If the answer to both of the above questions is yes, the logical relevance of the evidence has been established. [11]

Necessity

[46] In determining whether the expert evidence meets the test of necessity, the court must consider whether the evidence will provide information which is likely to be outside the experience of the trier of fact or if the trier of fact will be unlikely to form a correct judgment about a matter in issue if unassisted by the expert opinion evidence. [12]

Analysis

Dr. Lazar’s Qualifications

[47] Dr. Lazar’s curriculum vitae and evidence satisfy me that he is properly tendered as an expert medical witness in medical ethics and medically accepted practices and processes in the ICU related to end of life decision-making.

[48] Dr. Lazar has impressive academic qualifications and extensive medical experience working with patients in the ICU. He was the Director of the Medical Surgical ICU at Toronto General Hospital/University Health Network (UHN) from 2003 to 2016. He remains a staff physician in Respirology and Critical Care at the UHN. From 2000 to present, he has been an Associate Member of the Joint Centre for Bioethics at the University of Toronto. He has received an award in clinical ethics. He was on the Executive of the Advance Care Planning Initiative with the UHN from 2012 to 2014. He has received a peer-reviewed grant in “Improving communications around quality end of life care”. He wrote a book chapter on “Withdrawal of Life-Support” in the Encyclopedia of Trauma Care, a text published in 2015. He has published, lectured and presented extensively on end of life decision-making, substitute decision-making and ethical issues surrounding end of life decisions.

[49] Dr. Lazar acknowledged that he does not consider himself an expert on the standard of care of nurses in Ontario. In my view, this is not an impediment to his provision of expert evidence in this case. Dr. Lazar described the ICU team as including physicians, nurses, as well as other health professionals. His experience and expertise is as a physician and a member of an ICU team. I find that Dr. Lazar is qualified to give expert opinion evidence on the functioning and decision-making processes within an ICU team. Dr. Lazar is also an expert in end of life decision-making. That decision-making is governed by the Health Care Consent Act, 1996 (HCCA). [13] The purpose of the HCCA is “to provide rules with respect to consent to treatment that apply consistently in all settings”. The HCCA applies to health practitioners, including physicians and nurses.

[50] The defence position is that an expert in nursing standards is required to address the scope of practice and standard of care of nurses. However, Dr. Lazar is not being asked to opine on a task that might exclusively be within the scope of a nurse’s practice, such as care of a wound. Rather, his evidence and expertise is directed at the manner in which an ICU team functions: who has the final decision-making authority, how and when a SDM should be approached when dealing with end of life decisions, and whether or not the physician needs to be involved in the decision to terminate life support. These are areas in which he is eminently qualified.

[51] I will now turn to a consideration of the admissibility of evidence the Crown seeks to adduce.

Evidence in Relation to “Brain Death”

[52] The Crown proposes to ask Dr. Lazar questions about the timing and meaning of a declaration of brain death. The Crown argues that this is relevant for two reasons:

(i) Ms. Flynn told Mr. Leblanc that his wife was brain dead, and (ii) The Crown expects that Ms. Flynn will take the position that Ms. Leblanc was brain dead at the time Ms. Flynn discontinued life support and therefore the removal of life support did not cause her death.

[53] Dr. Lazar testified that certain specified tests must be undertaken by a physician before there is a declaration of brain death. In a case such as this, that declaration would not be made until at least 24 hours had elapsed. In other cases, there might be consideration given to donation of a patient’s organs. If the circumstances allowed for organ donation, necessary tests would be undertaken by two physicians.

[54] Ms. Flynn is not asserting as a defence to these charges that Ms. Leblanc was brain dead when Ms. Flynn discontinued her life support. No declaration or diagnosis of brain death appears in Ms. Leblanc’s medical chart.

[55] Dr. Lazar testified that it would not be uncommon in a case like this for family members to receive information about the gravity of a patient’s prognosis from nurses at the bedside and physicians involved in the patients’ care. Dr. Fahy testified at the preliminary hearing that he had “almost certainly” told Mr. Leblanc that his wife was brain dead, and Mr. Leblanc testified that Ms. Flynn told him that his wife was brain dead. It appears that neither Dr. Fahy nor Ms. Flynn were using the term in the technical manner used by Dr. Lazar.

[56] I agree with the defence that evidence about the factors involved in the determination of death in the ICU, and in particular evidence surrounding a diagnosis or declaration of brain death, does not meet the test of relevance as necessitated by Mohan. Opinion evidence on factors involved in the determination of death [14] is not logically relevant. The defence is not alleging that Ms. Leblanc was brain dead at the time life support was terminated. There was no declaration of brain death made. The use of the term “brain dead” does not appear to have been used by any health practitioner in a technical manner and had already been used by another health practitioner to describe Ms. Leblanc’s condition. I find that this evidence has the potential to confuse and distort the fact-finding process. It will be sufficient for the jury to hear evidence, as I expect will be elicited from other witnesses, that although that term was used, no formal diagnosis or declaration of brain death had been made. Evidence in relation to the 24-hour wait period can be conveyed to the jury as set out below without potentially confusing evidence about a brain death declaration and its relationship to organ donation.

[57] Dr. Lazar testified that, in some circumstances, a nurse might be in a position to declare death using cardiorespiratory criteria. He was not familiar with GBGH guidelines regarding pronouncement or declaration of death.

[58] I agree with the defence that evidence concerning who can pronounce death in the ICU [15] will not assist the jury in determining any matters in issue. The pronouncement of death necessarily occurred after Ms. Flynn terminated Ms. Leblanc’s life support. It does not assist in determining whether or not Ms. Flynn committed an unlawful act or failed to meet the requisite standard of care.

Evidence on the 24-hour Wait

[59] Dr. Lazar was interviewed by the police. In the course of his interview, Dr. Lazar was asked about the minimum amount of time that would be practicable before any decisions would be made to start a “termination process”. Dr. Lazar stated that in dealing with a patient who had a cardiac arrest with resuscitation “where we are monitoring to determine recover [sic] irreversibility or recoverability, our guidelines suggest that we should carry on for at least 24 hours, because we’re talking about, as we say, hypoxic-ischemic injury to the brain”. He explained that with this kind of brain injury there can be some return of brain function at 24 hours. Dr. Lazar considered that a 16-hour wait in these circumstances would not be acceptable.

[60] Dr. Lazar stated that initial requests by the SDM to do everything that medical personnel could “reinforced the need to wait, be certain about the diagnosis, prognosis, irreversibility” and that “in a previously healthy, younger person, who has a sudden catastrophic event, nobody should be in a hurry”. At the voir dire, Dr. Lazar referred to the “full code order” in Ms. Leblanc’s chart. He testified that a full code order is the opposite of a “no CPR order”. It means that if there were to be another cardiac arrest, another resuscitation would occur.

[61] Although many of the questions addressed to Dr. Lazar at the preliminary hearing and in the course of the voir dire were predicated on waiting 24 hours to declare brain death, Dr. Lazar’s answers to the police were not restricted to a declaration of brain death.

[62] Dr. Lazar stated that even where a nurse has discussions with a SDM, the final care plan would involve discussion with the physician of record. It was his opinion that if a family member wished to terminate life support in a case such as this before the 24-hour period had elapsed, there would have to be a conversation about certainty of the diagnosis and certainty of the severity of brain injury. Most clinicians would try to convince the SDM to wait another day before making a decision about withdrawal of life support. At the voir dire, Dr. Lazar testified that there is a period of uncertainty where “you are trying to buy enough time” to determine irreversibility, particularly of brain function.

[63] Dr. Lazar testified that Ms. Flynn’s decision to terminate life support without direction on the medical chart to do so was, in his experience, “virtually unprecedented”. The most responsible physician, defined mostly by whose name is on the chart, is the final decision-maker within the ICU healthcare team. It was “virtually unprecedented” to have a physician cut out of the decision-making regarding end of life care and for those decisions to occur between a nurse and a SDM.

[64] Dr. Lazar’s evidence was that “perhaps even in the majority of cases”, the patient would end up being declared brain dead after an appropriate period of observation. However, there would be cases where the patient’s breathing would be restored after 24 or 48 hours. Most of those patients would end up with severe neurologic injury, perhaps even in a persistent vegetative state, but would not be brain dead.

[65] Despite Dr. Lazar’s unfamiliarity with the ICU at GBGH, I am satisfied that his evidence meets the threshold requirements set out in Mohan. Dr. Lazar’s evidence concerns standard practices in an ICU. The evidence addresses who has the final decision-making authority, how long to wait before terminating life support after cardiac arrest and resuscitation in a patient with a hypoxic-ischemic brain injury, especially one with a “full code” order, and how long before discussions with a SDM about terminating life support should occur.

[66] The evidence is relevant. It may assist the jury with whether or not Ms. Flynn’s failure to wait 24 hours before discussing termination of life support with Mr. Leblanc, failure to wait 24 hours before terminating life support, and doing so without involving the physician in the end of life decision-making was what a “reasonable person/member of an ICU team” [16] or a “reasonably prudent person/member of an ICU team” [17] would do in the same circumstances. Dr. Lazar is qualified to give opinion evidence on these matters; an expert in the scope and standard of care of nurses is not required.

[67] The evidence is also relevant to a determination of whether or not Mr. Leblanc gave informed consent. Considerations in determining whether consent is informed include whether the SDM was advised of the expected benefits of the treatment, the material risks, alternative courses of action, and the likely consequences of not having the treatment. Although there appears to be nothing prohibiting a SDM from removing his or her charge from life support before the 24-hour period has elapsed, whether or not information about a possible return of brain function should have been conveyed to Mr. Leblanc is an issue that could go to the core of the validity and informed nature of any consent he gave.

[68] The evidence is necessary. This evidence is outside the experience and knowledge of the triers of fact. By virtue of his medical training and work experience, Dr. Lazar is able to assist the triers of fact with these issues.

[69] Given that the evidence is relevant and necessary, there is no exclusionary rule that prevents the triers of fact from hearing it.

[70] Dr. Lazar is qualified to give this evidence, relating as it does to the reasonable actions and standard of care of the members of an ICU team in relation to end of life decisions and discussions.

[71] The court retains discretion to exclude evidence where its prejudicial effect outweighs its probative value. In conducting a “cost-benefit” analysis of the proposed evidence, I must exercise a gate-keeping function. This requires an assessment of the “probative potential of the evidence and the significance of the issue to which the evidence is directed.” [18]

[72] The evidence is highly probative. As noted above, the jury will have to decide whether Ms. Flynn’s actions were “reasonable” and “reasonably prudent” and if Mr. Leblanc gave valid consent.

[73] The evidence is reliable. Dr. Lazar has extensive practical experience working in an ICU. Although he works in a large teaching hospital, the issues he will address are relevant to and will arise in any ICU. He has lectured and published extensively on issues relating to end of life decision-making. In his day-to-day work and his teaching, he addresses issues concerning the termination of life support, who has the final decision-making authority in conjunction with the SDM and when those decisions should be made. I agree with the Crown’s position that these issues are at the heart of the matter before the court and provide a solid foundation for the reliability of Dr. Lazar’s expertise.

[74] There is no issue taken with Dr. Lazar’s impartiality and objectivity.

[75] As noted by the Crown, the jury will be well-equipped to critically assess Dr. Lazar’s evidence in context. There will not be undue consumption of time as the evidence is not extremely complex. The defence will be able to cross-examine Dr. Lazar about the strength of the evidence and his expert opinion. Its presentation will not confuse the jury, be misused or distort the fact-finding process.

[76] The Crown seeks to elicit evidence from Dr. Lazar related to the GBGH DLSS policy in particular. Questions about this document require Dr. Lazar to speculate on some of the policy’s content and attempt to explain its meaning. I am satisfied that Dr. Lazar is not in a position to do so. Dr. Lazar has no special expertise to define this document. It will be for the jury to glean its meaning.

[77] There was a lack of clarity with respect to the relevance of sedating medications in the materials and evidence before me. If the sedating medications can be shown to be relevant to Dr. Lazar’s opinion about the need to wait 24 hours to commence discussions with the SDM or to terminate life support, this matter can be re-addressed.

Evidence on Consent

[78] The defence position is that expert evidence is not required on accepted and reasonable practices of ICU medical personnel in obtaining informed consent from a SDM in end of life decision-making. The defence argues that it is sufficient for the court to instruct the jury on the legislative provisions of the HCCA. The defence pointed to sexual assault trials where consent is an issue and no expert evidence is called.

[79] I am satisfied that considerations relevant to consent in the context of this case cannot be equated to issues of consent in sexual assault trials. The issues in this case are not within the jury’s everyday experience. The application of the various legislative requirements relevant to the process of obtaining consent, in this case from a SDM in end of life decision-making in an ICU, is a matter that is outside the experience of the triers of fact. The jury cannot be properly instructed solely by reference to the provisions of the HCCA without expert evidence to guide them in its application to end of life decision-making.

[80] The HCCA applies to physicians and nurses. Dr. Lazar is qualified to testify on the process, led by the physician, to obtain informed consent from the SDM. He gave evidence that there are accepted practices and legislation to guide health practitioners in end of life decision-making.

[81] Dr. Lazar testified that informed consent is a process. Withdrawal of consent in a case such as this could easily take more than one meeting. He described the two approaches that a health professional could take in obtaining consent from a SDM: the menu approach and the shared decision-making approach. Although Dr. Lazar prefers the shared decision-making approach, he testified that the use of the menu approach would not be considered professional misconduct. As such, his personal opinion on the preferred approach will not assist the jury. Having said that, his opinion that the HCCA supports a shared decision-making model between the SDM and the physician is relevant. It will assist the jury in determining whether or not Ms. Flynn’s actions met the requisite standard of a “reasonable” or “reasonably prudent” health practitioner in the same circumstances.

[82] Dr. Lazar testified that the decision is not ultimately that of the SDM, but a joint decision with the physician. The HCCA requires that a health practitioner not administer treatment unless he or she is of the opinion that the SDM has given consent on the patient’s behalf in accordance with the HCCA. [19] The HCCA requires the SDM to give or refuse consent by considering the patient’s wishes, or, if the wishes are unknown, by acting in the patient’s best interests. These provisions require the health practitioner to ensure a decision is truly substituted. If the medical team is of the opinion that withdrawal of consent for life support is not in the patient’s best interests, the physician has to consider ways to deal with the conflict. If the physician is of the view that terminating life support is not in the patient’s best interests, there could ultimately be an application to the Consent and Capacity Board.

[83] Dr. Lazar’s evidence about the joint decision-making process and how to ensure a decision is truly substituted is relevant for the jury. Failure to ensure the decision is truly substituted may assist the jury in determining whether or not Ms. Flynn committed an unlawful act by removing life support, whether she had valid consent and/or if she met the requisite standard.

[84] The evidence is necessary in that it is outside the experience and knowledge of the triers of fact. By virtue of his medical training and work experience, Dr. Lazar is able to assist the triers in these areas.

[85] Given that the evidence is relevant and necessary, there is no exclusionary rule that prevents the triers of fact from hearing it.

[86] Dr. Lazar is qualified to give this evidence, relating as it does to the manner in which members of an ICU team make decisions in conjunction with a SDM in end of life cases.

[87] The court retains discretion to exclude evidence where its prejudicial effect outweighs its probative value. In exercising my gate-keeping function, I have assessed the “probative potential of the evidence and the significance of the issue to which the evidence is directed.” [20]

[88] The evidence is highly probative. As noted above, the jury will have to decide whether or not Ms. Flynn acted unlawfully, met the requisite standard of care and if Mr. Leblanc gave informed consent to terminate Ms. Leblanc’s life support.

[89] The evidence is reliable. Dr. Lazar has lectured and published extensively on issues relating to end of life decision-making and applied these issues directly through his experience leading a team of health professionals in an ICU. As Dr. Lazar noted, the obligations of health professionals are very similar, regardless of their professional training. The HCCA applies to health practitioners, including nurses and physicians. As such, Dr. Lazar’s expertise is relevant to the standard of care for all health practitioners on an ICU team dealing with the HCCA and its application to end of life decision-making.

[90] Again, the fact that Dr. Lazar’s experience has come from a major teaching hospital does not limit his expertise or the value of his evidence. Dr. Lazar’s unfamiliarity with GBGH policies and procedures and with whether GBGH has a bioethics professional with whom staff can consult does not affect the manner in which members of an ICU team are required to make end of life decisions that comply with the HCCA. Dr. Lazar testified that there are informed consent rules and legislation to which hospitals are to adhere. Dr. Lazar’s evidence can guide the jury with factors that may enhance or diminish the validity of consent. It can assist the jury with understanding the requisite standard of care. This provides a solid foundation for the reliability of Dr. Lazar’s expertise.

[91] There is no issue taken with Dr. Lazar’s impartiality and objectivity.

[92] There will not be undue consumption of time as the evidence is not extremely complex. The defence will be able to cross-examine Dr. Lazar about the strength of the evidence and his expert opinion. Its presentation will not confuse the jury, be misused or distort the fact-finding process.

[93] Dr. Lazar is able to comment on matters that could affect the provision of informed, voluntary and truly substituted consent. His ultimate opinion, however, as to whether the factors in this case led to informed consent is a matter for the jury. Dr. Lazar’s evidence about whether or not a conversation with the SDM is medically ethical is an issue that is not necessary for the jury to decide and will not assist the jury in determining the relevant issues.

Conclusion

[94] For the foregoing reasons, the Crown is permitted to elicit expert evidence from Dr. Lazar on the areas set out in these reasons at subparagraphs 2(ii) and (iii) (in general but not in relation to the GBGH DLSS policy in particular) and (v) (its application to the present case), as described in subparagraphs 31(vi), (vii) and (ix).

QUINLAN J.

Released: April 13, 2017

Appendix

Health Care Consent Act, 1996 [21]

Meaning of “substitute decision-maker”

9. In this Part,

“substitute decision-maker” means a person who is authorized under section 20 to give or refuse consent to a treatment on behalf of a person who is incapable with respect to the treatment.

CONSENT TO TREATMENT

No treatment without consent

10. (1) A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,

(b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act.

Elements of consent

11. (1) The following are the elements required for consent to treatment:

12. The consent must relate to the treatment.

13. The consent must be informed.

14. The consent must be given voluntarily.

15. The consent must not be obtained through misrepresentation or fraud.

Informed consent

(2) A consent to treatment is informed if, before giving it,

(a) the person received the information about the matters set out in subsection (3) that a reasonable person in the same circumstances would require in order to make a decision about the treatment; and (b) the person received responses to his or her requests for additional information about those matters.

Same

(3) The matters referred to in subsection (2) are:

1. The nature of the treatment.
2. The expected benefits of the treatment.
3. The material risks of the treatment.
4. The material side effects of the treatment.
5. Alternative courses of action.
6. The likely consequences of not having the treatment.

Express or implied

(4) Consent to treatment may be express or implied.

Plan of treatment

13. If a plan of treatment is to be proposed for a person, one health practitioner may, on behalf of all the health practitioners involved in the plan of treatment,

(a) propose the plan of treatment; (b) determine the person’s capacity with respect to the treatments referred to in the plan of treatment; and (c) obtain a consent or refusal of consent in accordance with this Act,

(ii) from the person’s substitute decision-maker, concerning the treatments with respect to which the person is found to be incapable.

Principles for giving or refusing consent

21. (1) A person who gives or refuses consent to a treatment on an incapable person’s behalf shall do so in accordance with the following principles:

22. If the person knows of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, the person shall give or refuse consent in accordance with the wish.

23. If the person does not know of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, or if it is impossible to comply with the wish, the person shall act in the incapable person’s best interests.

Best interests

(2) In deciding what the incapable person’s best interests are, the person who gives or refuses consent on his or her behalf shall take into consideration,

(a) the values and beliefs that the person knows the incapable person held when capable and believes he or she would still act on if capable; (b) any wishes expressed by the incapable person with respect to the treatment that are not required to be followed under paragraph 1 of subsection (1); and (c) the following factors:

1. Whether the treatment is likely to, i. improve the incapable person’s condition or well-being, ii. prevent the incapable person’s condition or well-being from deteriorating, or iii. reduce the extent to which, or the rate at which, the incapable person’s condition or well-being is likely to deteriorate.

2. Whether the incapable person’s condition or well-being is likely to improve, remain the same or deteriorate without the treatment.

3. Whether the benefit the incapable person is expected to obtain from the treatment outweighs the risk of harm to him or her.

4. Whether a less restrictive or less intrusive treatment would be as beneficial as the treatment that is proposed.

Information

22. (1) Before giving or refusing consent to a treatment on an incapable person’s behalf, a substitute decision-maker is entitled to receive all the information required for an informed consent as described in subsection 11 (2).

[1] , [1994] 2 S.C.R. 9. [2] 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 24, 53-54. [3] White, at para. 20. [4] White, at para. 23. [5] 2009 ONCA 624, 97 O.R. (3d) 330, at para. 76; leave to appeal to SCC refused, [2010] S.C.C.A. No. 125; cited with approval in White at para. 24. [6] Mohan, at p. 12. [7] R. v. J.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 28. [8] Abbey, at paras. 79, 87; White, at paras. 24, 53-54. [9] Mohan, at p. 10; Abbey, at paras. 81-84. [10] R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, (C.A.), at paras. 204-206. [11] [R. v. A.K. (1999]](https://www.canlii.org/en/on/onca/doc/1999/1999canlii3793/1999canlii3793.html), 45 O.R. (3d) 641 (C.A.), at paras. 77-78; R. v. Coultice, at paras. 38-46; Application for leave to appeal to SCC dismissed, [2004] S.C.C.A. No. 353. [12] A.K., at para. 92. [13] S.O. 1996, c. 2, Sched. A. See the Appendix for relevant provisions. [14] See subparagraph 2(i) and the specific areas set out in subparagraphs 31(i) to (iv) of these reasons. [15] See subparagraphs 2(iv) and 31(viii) of these reasons. [16] An essential element of the dangerous component of unlawful act manslaughter. [17] An essential element of criminal negligence causing death. [18] Abbey, at paras 79, 87. [19] See Appendix for the relevant provisions of the Health Care Consent Act. [20] Abbey, at paras. 79, 87. [21] S.O. 1996, c. 2, Sched. A.