Mike on Crime (12 page)

So I say, get your pound of flesh. You can not increase my agony. You can only prolong it. The police have been outstanding and have shown nothing but kindness and compassion, as well as our neighbours, friends, etc. I am hard of hearing so forgive me to all that call.

Doerksen then followed up on the letter by sitting down with the
Free Press
at his home for an exclusive interview.
“I want them to leave me alone to grieve by myself, rather than have the whole world looking at me. I'm a good citizen. They've got no right to do this to me,” Doerksen said through tears. “It's already a terrible thing to lose your wife. This just makes the agony worse.”

Doerksen went into great detail about his wife's suffering and her desire to end her life. “She wanted to die a long time ago. She kept it in the family, but in the last year she told everyone. Of course it upset me. I didn't want her to give up. But I didn't hold that against her,” he said.

Glazer sat at his client's side, admitting they hoped enough pressure might convince justice officials to ultimately drop the controversial case. “We're asking the justice department to back off and drop the charges,” said Glazer.

WEDNESDAY AUGUST 26, 1998

Another six months had passed. Six long, stressful months for Bert Doerksen. The case had largely disappeared from the headlines. But it continued to hang over Doerksen like a dark cloud. And now there was another layer of tragedy in play. Doerksen had just been diagnosed with terminal cancer.

Lawyer Martin Glazer fired another volley by sending a letter to Manitoba Justice Minister Vic Toews. He said continuing to go after a dying man in these circumstances was cruel and unusual punishment.

“Based on the facts of the case and the lack of a likelihood of conviction, I'm asking him to step in and review and reconsider the case,” Glazer told reporters. Of course, this was mostly a public relations move. Glazer knew the odds of a sitting justice minister actually using his “prosecutorial discretion” to quash a charge were slim. “There is obviously a renewed sense of urgency as a result of his illness,” said Glazer. “I'm seeking his compassion as a result of the man's medical condition.”

Not surprisingly, Toews wasn't willing to take the bait. Hours after delivering the letter, Glazer received a response. “It is a long-standing practice of attorney generals in Manitoba not to become involved in individual cases despite the legal and constitutional ability to do so,” deputy attorney general Bruce MacFarlane wrote in the reply. MacFarlane added there was a “need to avoid even a perception that political considerations may be involved in the decision-making process.” The charge remained. The fight would continue.

The Doerksen family had seen enough. Frustrated by what they viewed as a lack of compassion from senior government and justice officials, several members mounted a full-scale attack.

“He's being treated like a test case,” Jim Doerksen told the
Winnipeg Free Press
. He said his father didn't deserve what he was being put through. “He's in a lot of stress. I don't know how long he will live. This shouldn't be happening.”

Jim Doerksen took direct aim at justice minister Vic Toews, blasting him for sitting on the sidelines. “Vic Toews, as the minister of justice, is doing a terrible thing. You can't prosecute someone who is innocent. The Crown is starting to look pretty stupid now,” he said. He revealed the Crown had made his dad an offer—plead guilty in exchange for receiving no jail time. As a matter of principle, it was immediately refused. “To me that's outright blackmail,” he said. And he added this wasn't a matter of wanting special treatment for his father, who he described as “lonely” and in a constant state of grieving. “I don't think he should be getting any special treatment because of the cancer. There never should have been charges laid in the first place,” he said.

The Crown's office responded the following day with their own public statement. For the first time, a slight window of opportunity appeared to open. “The Crown has maintained, and will continue to maintain, an open dialogue about [Doerksen's] medical condition,” the statement said. Sources told the
Free Press
there was fear within the justice department of potential backlash from special interest groups should they drop the case against Doerksen. And so it continued to move forward.

In January 1999, a one-day preliminary hearing was held to determine if there was sufficient evidence for the case to proceed to trial. Provincial court Judge Arnold Conner ruled there was after hearing an abbreviated summary of the Crown's case. Prosecutor Brian Wilford told court his office had plenty of sympathy for Doerksen but he said they must follow the law as it was currently constructed. Outside court, defence lawyer Martin Glazer repeated the family's growing frustration. Barring a miracle, it seemed now like Doerksen was going to trial.

“I'm hopeful a jury will find him not guilty,” said Glazer.

FRIDAY JUNE 16, 2000

Now 81, Bert Doerksen was ready to give up—in both his battle against the assisted suicide charge, and the battle against the disease slowly eating away at his body. “The end is inevitable. I'm just not anxious to prolong it, so why go through the agony of that?” Doerksen, his voice raspy and wavering, said in an interview from his home. And so he was going to let “nature take its course” and discontinue all medical treatment. He blamed the heavy burden the province had placed on him by branding him a criminal and bringing him to court. “This is just terrible. I have never, ever had a criminal charge against me in my life. I have done nothing that is criminal,” he said.

Lawyer Martin Glazer renewed his call for the Justice Department to drop the case against his client. “Mr. Doerksen has suffered enough. This process is only exacerbating his suffering and I think enough is enough,” said Glazer. Glazer had just received a letter from Doerksen's doctor that prompted him to make the renewed request for mercy. He faxed a copy of the letter to the Justice Department and requested an immediate stay of proceedings based on its content.

“Mentally, I believe Mr. Doerksen has deteriorated. On May 19, he indicated he had ‘had the biscuit' and the communication which is enclosed on May 30 indicates that he is ‘tired, old and lonesome,'” wrote Dr. Paul Galbraith. “I do not think that this 81-year-old man is capable of pursuing the rigours of a criminal trial.”

Doerksen suffered a relapse of lymphoma in March. It was originally diagnosed in the summer of 1998 and appeared to be under control, according to the letter from his doctor. Doerksen was also experiencing night sweats, nausea and acute pain. Doctors were awaiting results of a CT scan to see if his cancer had spread further. Although he continued to take painkillers, Doerksen was adamant he no longer wanted to be treated with chemotherapy, radiotherapy, surgery or any other aggressive medical technique. “Sometimes the treatment can be worse than the disease,” he said. “The state wants to make a criminal out of myself where no crime has occurred.” Doerksen said it was “obvious” justice officials had no sympathy for him by insisting he stand trial. “Their ideology and zeal have not diminished,” he said. “Physically, it would be out of the question for me to spend time there in court.

FRIDAY JULY 28, 2000

He was just days away from going to trial when the news he'd been praying for finally arrived. Manitoba justice officials had a change of heart. They were going to drop the assisted suicide charge. Bert Doerksen broke down in tears after hearing Crown attorney Brian Wilford had formally entered the stay of proceeding.

“This is an example of compassionate justice,” defence lawyer Martin Glazer told court. “The stress level, the nightmares have been just awful. Now he can die in peace without this hanging over him.”

Wilford explained how Doerksen's current medical condition, which included recent updates from his doctors and even a face-to-face meeting, led them to this decision. “Given his physical and mental deterioration since his wife died, it has been determined that it would not be appropriate in the public's interest to proceed with this prosecution,” Wilford told Queen's Bench Justice Nathan Nurgitz. “Let me just say this decision has nothing to do with the merits of the case. It has everything to do with the status of Mr. Doerksen's health. He is incapable of attending for his trial or participating in it mentally.”

Nurgitz agreed it was the right decision. “This has nothing to do with his guilt or innocence, and everything to do with the public's best interests,” the veteran judge said.

Doerksen was unable to attend court in person to hear the news. And it took several telephone rings at his home before he picked up. His frail, shaken voice suggested it was not a good time to call. “I'm not feeling too much of anything right now,” he said, noting the heavy dose of morphine he was currently taking.

Other family members proclaimed victory following the ruling. “We are so very relieved. His health has deteriorated so badly, and this has put so much stress on him,” said Doerksen's son, Jim. The California resident came to Winnipeg to be with his father. “We don't know how much longer he will live, but this case was definitely going to shorten his life,” he said. “My mother was in severe pain and couldn't stand it anymore. My father has had a tremendous amount of support and believes this has been a serious intrusion of his life.”

Glazer said he believed the merits of assisted suicide should be debated by government, not lawyers. “Today is a victory, but this case is a tragedy. Hopefully we've learned a lot from this,” he said.

Rob Finlayson, assistant deputy attorney general, said the Crown had no choice but to lay the assisted-suicide charge against Doerksen. “The province is not responsible for the laws of the land. That is up to our elected officials,” he said outside court. Finlayson said the Crown had a solid case. He said the Crown had discretion to drop the case only when it became clear he would not be fit for trial. “I don't think this will be precedent-setting. This is an exceptional case because of the age of Mr. Doerksen and his deteriorating health,” he said.

SATURDAY NOVEMBER 8, 2003

There was no trial. There would be no inquest. And now, more than three years after his high-profile case faded from the public spotlight, Bert Doerksen lost his battle with cancer. He was 85.

“Nobody knew when he was going to be terminal—he outdid the doctors' predictions by a mile,” Doerksen's son, Jim, told the
Winnipeg Free Press
.

Defence lawyer Martin Glazer said he believed justice officials helped extend his former client's life by showing mercy. “I'm pleased to see he was able to live out the rest of his life in peace without the threat of a criminal prosecution hanging over his head,” said Glazer. “Had the charge not been dropped, I think he would have died sooner.”

Jim Doerksen said his dad had hoped the case would ultimately lead to changes within the medical system, so people like his mother could get relief from chronic pain to avoid such drastic measures. “He really felt the province should get their act together and come to terms with people suffering,” he said. “I would hope nobody else has to go through what he went through. Hopefully someone will grab it by the horns and do something to change this. I still feel if she had been properly looked after by the medical system she would be alive today.” Doerksen said his dad was lucid to the end and had a good quality of life in the time since the charge was dropped.

“Palliative care nurses took care of my father for the last two weeks of his life and did a marvelous job,” said Jeny Forest, Doerksen's daughter. “It allowed him to die at home peacefully and without pain. With my mother they insisted she wasn't terminal, but she was. Any person contemplating suicide is terminal and at some point she will succeed. Most important, we were there when my father died, but with my mother, because she didn't want us there, she died alone.”

I
t has been more than a decade now since Bert Doerksen passed away. But there's no doubt his case—and the important issues it raised—continue to generate debate within both the justice and medical community. And as the population continues to age, these types of tragic stories will continue to play out. I've even covered a few of them. Two in particular stand out.

In 2004, I wrote about an elderly Manitoba couple who formed a suicide pact, then killed themselves with a single bullet inside their Ashern-area home. The couple, who were both 75 and had been married 56 years, somehow managed to configure the weapon and themselves so they would die at the exact same time.

“They loved each other and did everything together. They were very attached. Even in death,” a brother of the elderly woman told me from his Ashern home, located about two hours north of Winnipeg. “They were so much in love, so happy. Clearly they had put a lot of thought and planning into this.”

“I've often thought that if one should go, what would happen to the other? Obviously they had thought about that as well,” said a close friend of the deceased woman.

The elderly woman had undergone gall bladder surgery about six weeks before her death and had been struggling with pain and discomfort, according to the family. Her husband was also battling poor health, having recently undergone treatment for a prostate condition. The couple was survived by four daughters, one son, numerous grandchildren and siblings.

Later that year, 86-year-old Tony Jaworski stabbed his 83-year-old terminally ill wife, Sophie, to death as she lay in her bed at Seven Oaks Hospital in Winnipeg. Jaworski then turned the knife on himself, plunging it into his own stomach in a failed suicide bid. He ultimately pleaded guilty to a reduced charge of manslaughter—sparing him the automatic life prison sentence required for murder—and was given a sentence of 17 months time in custody and three years of probation. It was a compassionate resolution to a case which legal experts say made Jaworski Canada's oldest convicted killer.