R. v. Genereux

R. v. Genereux Collection Decisions of the Court of Appeal Date 1999-04-27 Docket numbers C29797, C29940 Judges Brooke, John Watson; Finlayson, George Duncan; O’Connor, Dennis Subject Criminal Decision Content DATE: 19990427 DOCKET: C29797 and C29940 COURT OF APPEAL FOR ONTARIO BROOKE, FINLAYSON and O?CONNOR JJ.A. BETWEEN: HER MAJESTY THE QUEEN ) William McDowell and ) Glynnis P. Burt, for the appellant (Appellant)) ) and ) ) Robert Kelly, for the respondent MAURICE GENEREUX ) ) John A. Campion and Scott Fenton, (Respondent) ) for the Intervenors the Council of ) Canadians with Disabilities ) ) Heard: March 16, 1999 On appeal from the judgment of C. Scullion J., dated December 22, 1997. BY THE COURT: [1] Maurice Genereux, a Toronto physician, was convicted on his plea of guilty to each of two counts of aiding and abetting a patient to commit suicide. He was sentenced to two years less one day and three years probation on each count, to be served concurrently. Dr. Genereux appeals from the sentence and asks that a conditional sentence order be made. The Crown also appeals from the sentence and asks that the period of imprisonment be increased. [2] After eleven days of evidence at a preliminary inquiry before Scullion J., Dr. Genereux re-elected, pleaded guilty, and was convicted on these two counts. There followed two days of evidence on the sentence issue. Judgement having been reserved, Scullion J. pronounced the sentence on May 13, 1998. [3] Essentially the case for the Crown was that Dr. Genereux supplied two of his patients who were HIV positive but not suffering from AIDS, at their request, with a drug to assist them to commit suicide. At the time he supplied the drug, each of the patients was seriously depressed and was fearful of death from AIDS. Neither patient was terminally ill at the time Dr. Genereux gave him the drug nor at the time it was ingested. To the knowledge of Dr. Genereux, treatment could have helped both. [4] Dr. Genereux’s patients were Arron McGinn, who committed suicide on April 11, 1996, and Mark Jewitt who attempted suicide on July 12, 1995 but survived. In each case, Dr. Genereux had given a prescription enabling the patient to acquire a lethal dose of a drug (seconal) knowing that it was going to be used to commit suicide. [5] Mark Jewitt had been a patient of Dr. Genereux from 1988 until the date of his attempt to end his life in 1996. On November 1, 1988, he tested positive for HIV. At that time he lived with a partner who was also a patient of Dr. Genereux. In early 1993, Mr. Jewitt found a bottle of seconal, which had been prescribed for Mr. Jewitt’s partner by Dr. Genereux. When he asked Dr. Genereux not to help his partner commit suicide, Dr. Genereux indicated that this was a matter of patient confidentiality. In June of that year Mr. Jewitt’s partner died of AIDS. Mr. Jewitt became obsessed with the possibility of the same fate and determined to commit suicide if he developed AIDS. [6] It was the gist of Mr. Jewitt’s evidence that Dr. Genereux prescribed drugs on which he was dependent for depression, lack of sleep and for HIV. He told Dr. Genereux he had learned of seconal as a means of suicide. After he had tested positive for HIV his condition deteriorated and he mistakenly thought he had AIDS. In addition, he was struggling financially and very depressed. [7] On July 12, 1995 Mr. Jewitt asked Dr. Genereux for seconal to help him sleep. Knowing that his patient was actually contemplating suicide, Dr. Genereux gave him the prescription. The appointment with Dr. Genereux had been but a few minutes. There had been no medical examination or enquiry. [8] Later that day, a friend found Mr. Jewitt unconscious. He had taken all of the seconal. A call to 911 saved his life. In cross-examination Mr. Jewitt said he did not blame Dr. Genereux, rather he blamed himself. [9] Arron McGinn tested positive for HIV in 1989. From early in 1990, he and his best friend were both patients of Dr. Genereux. [10] Mr. McGinn was, throughout his illness, a violent abusive man with a history of depression. He used and abused drugs both prescription and illegal. He monitored his own health and was concerned about living with AIDS. [11] On August 11, 1995 Dr. Genereux prescribed for Mr. McGinn a quantity of seconal that would be lethal. He repeated this prescription a week later as Mr. McGinn said the first batch had been lost. At a meeting that September with Dr. Genereux, Mr. McGinn said he had the seconal to kill himself and warned his friend who was present not to interfere. [12] That fall Mr. McGinn became emotionally unstable. His friend called and advised Dr. Genereux. Later that day the friend took Mr. McGinn to a psychiatric institution as he thought him suicidal. There is no suggestion that Dr. Genereux saw Mr. McGinn then or at any time preceding his death in April 1996. [13] Nine months after Dr. Genereux had given the prescription to him, on April 10, 1996, Mr. McGinn took all of the seconal. He said he did not want to suffer through AIDS and told his friend not to intervene. Later, when Mr. McGinn had lost consciousness, his friend called Dr. Genereux and asked if he should call 911. Dr. Genereux answered to the effect that death was what his friend wanted, and he should let him do it. Later Dr. Genereux attended, examined Mr. McGinn, completed a death certificate showing the cause of death as “AIDS pneumonia” and took the empty seconal bottle. [14] The trial judge found that a call to 911 might well have saved Mr. McGinn’s life. [15] Four experts were called with respect to sentence. Two were called by the Crown, and two by the defence. All were highly qualified. For the Crown, Dr. Hébert, an expert in ethics, concluded that Dr. Genereux had failed to abide by the deepest and most rudimentary professional responsibilities of a physician caring for the incapable and the sick. He and his colleague asserted, and it is conceded, that neither patient was terminally ill nor beyond help yet Dr. Genereux did nothing to treat them. For the defence, Dr. Glancy, a psychiatrist who knew Dr. Genereux having treated him for some years, said: It would be my opinion the offences before the Court can best be understood in the context of a man who has difficulty refusing the demands of patients. This is in the context of over-identification with the patients. Doctor Genereux himself has trouble dealing with a number of his own interpersonal and experiential problems … Since his needs in other areas of his life have largely been unfilled, it is paramount that these needs are filled by patients. In particular, it would be my opinion that he over-identifies with patients who are HIV positive and are homosexual, because of his own intrapsychic difficulties. [16] There was a good deal of evidence about Dr. Genereux and his career. Since 1984, Dr. Genereux had devoted much of his practice to the gay and lesbian community in this city. Much of his work was in treating persons who suffered from HIV and AIDS virus. He was familiar with their experience, suffering and sometimes death. While the evidence of experts called by the Crown was understandably strong in criticism of Dr. Genereux for his departure from acceptable medical standards, there were before the trial judge a number of letters from patients which were testimonial to Dr. Genereux’s friendly care and concern for those who depended on him. There was also a good deal of evidence that reflected his character and a tragic career in medicine. [17] Dr. Genereux came from a small town in Alberta. He graduated in medicine from a university there. During his student years, upon the death of a young woman with whom he had established a relationship, he attempted to take his own life with an overdose of seconal. In 1971, he graduated. He entered the residency program in gynaecology and obstetrics but did not pass the fellowship examinations. For a while he lived in Africa but became an alcoholic. Following an illness there he returned to Alberta where he worked as a general practitioner. This came to an end when it was discovered that he was involved in a homosexual relationship. He was in disgrace and as a result his hospital privileges were withdrawn and members of his family shunned him. [18] Dr. Genereux was unable to obtain a license in British Columbia. He next worked in an outpost hospital in the Arctic for two years. That position ended when it was discovered he was addicted to drugs. There followed a period of successful treatment in the United States and at an institution in Toronto. From 1984 through 1987 he was a substance abuse counselor at the Toronto institution. He has abstained from alcohol since 1983. [19] He began his practice in Toronto in 1987 and built a large clientele of mainly gay males. HIV was his chief area of interest. In March 1994, Dr. Genereux pleaded guilty before the Discipline Committee of his profession to charges of professional misconduct arising from complaints of six male patients, five of whom were gay and HIV positive. The complaints were all of sexual improprieties and took place between 1987 and 1991. The profession suspended Dr. Genereux’s license for two years provided the suspension might be suspended after fifteen months if Dr. Genereux met certain conditions. [20] In February 1995, Dr. Genereux’s license was reinstated. Five months later he prescribed seconal for Mr. Jewitt and a month later for Mr. McGinn. [21] In March 1998, Dr. Genereux’s licence was revoked on his plea to charges of professional misconduct arising out of the matters giving rise to these offences. [22] In their submissions, counsel criticized the reasons of the learned trial judge as “insufficient” for his decision. We do not agree. There is no formula that must be followed. The trial judge found the facts generally as stated above, he considered the evidence of the experts called by the Crown and the defence and we think it clear from the reasons that he weighed the evidence and relied on parts of it. He addressed the principles he thought applicable and those relied on by the parties. [23] Was the sentence a fit one? We think the trial judge was alive to the seriousness of the appellant’s crimes and to the values sought to be protected by s.241(b) of the Criminal Code, the preservation of life and the protection of vulnerable people (Rodriguez v. British Columbia (Attorney-General) (1993), 85 C.C.C. (3d) 15 (S.C.C.)). Vulnerable people are the concern of the intervenor, and they rely heavily on the judgement of the Supreme Court in that case. [24] The Crown submits that a sentence of two years less one day was wrong and that a substantial term in the penitentiary was required to mark society’s abhorrence of Dr. Genereux’s conduct and to deter other like-minded people. Mr. Jewitt and Mr. McGinn were the kind of people s.241(b) should protect. Each was sick, confused, frightened and intent on suicide. But each could have been treated, as neither was terminally ill. Before the trial judge, the Crown said such a sentence was needed to send a message to doctors that they cannot partake in this type of activity. In this court essentially the same submissions were made adding, “More particularly, in the context of doctor- assisted suicide, the criminal sanction imposed will resonate throughout the medical profession, whose members are precisely the type of people who will influenced by the threat of severe criminal penalties”. [25] We appreciate the Crown’s submission but, in our view, the conduct of Dr. Genereux was a complete departure from acceptable medical standards and ethics, and it should be treated as such. The case stands on its own facts. We are sure that for such conduct the certainty of the loss of professional status, prosecution and incarceration where appropriate is understood. We doubt the wisdom of imposing a sentence designed to, or that might, intimidate physicians in the appropriate treatment of their patients. The trial judge correctly addressed the principle of deterrence. [26] Moreover, in our view, the sentence imposed by the trial judge gave adequate recognition to the requirement for denunciation. The offences were not committed for financial gain or personal benefit nor were they committed for the purpose of making a public or political statement about euthanasia or assisted suicide. Rather, these offences resulted from Dr. Genereux’s very serious personal inadequacies and his misguided acceptance of doing what his patients wanted him to do. Dr. Genereux was obviously ill-suited to the responsibilities and the stresses that are involved in the practice of medicine. [27] It is not suggested that the trial judge was wrong in considering Dr. Genereux as a first offender notwithstanding the disposition of charges of sexual misconduct towards other patients by the Discipline Committee of his profession. However, that evidence together with the evidence of his career and personal life was important in order that the Court understand the person to be sentenced and better appreciate the expert evidence. [28] We are not persuaded that the trial judge made any error in principle. In our opinion the sentence of two years less one day to be followed by a period of three years probation on each count to be served concurrently was a fit one. [29] The trial judge refused to order a conditional sentence providing that Dr. Genereux serve his sentence in the community. The judge concluded that on the facts of the case, a period of incarceration was required. Mr. McDowell has carefully reviewed with us the evidence of witnesses called by the defence on this issue. In particular, he has highlighted the evidence as to Dr. Genereux’s health and activities to date and the stigma arising from the decision of his profession to take away his license to practice medicine. We agree with the trial judge. We think imprisonment was required to mark society’s condemnation of Dr. Genereux’s conduct. It is here that the principle of denunciation was very important. The trial judge recognized this and correctly exercised his discretion. [30] In the result, leave to appeal sentence is granted but both appeals are dismissed. Released: Apr 27 1999 JWB “John W. Brooke J.A.” “G.D. Finlayson J.A.” “Dennis O’Connor J.A.”