The Coalition of Provincial Organisations of the Handicapped

RODRIGUEZ: AUTONOMY & VULNERABILITY MUST BOTH BE PROTECTED

In the relatively brief span it took for the case of Rodriguez versus the Attorneys-General of British Columbia and Canada to arrive at the doorstep of Canada’s Supreme Court, a wide assortment of interests had been attached to its coattails as official interveners. Last under the wire was none other than COPOH.

In the unlikely event that you don’t recall this case, Sue Rodriguez, refused by B.C.’s highest court, went to Ottawa asking that a law prohibiting assisted suicides be struck down. Ms. Rodriguez claims that it discriminates against those who cannot perform the act themselves -- i.e. persons with physical disabilities; that since suicide is no longer a criminal offense, they are deprived of an option to which able-bodied people have recourse. Ms. Rodriguez has the progressive disease amyotrophic lateral sclerosis (ALS), more commonly known as Lou Gehrig’s disease.

Frankly, we would have preferred to play only a supportive role with regard to this one, allowing our B.C. affiliate, British Columbia Council for People with Disabilities (BCCPD) to carry the flag. The BCCPD had been there from the beginning and had been exposed to a lot of heat for their stance from some fairly hardhitting quarters. But as last spring drew on and the calls for our involvement grew ever louder, it became clear that we would have to leave the bench, drop our gloves and take whatever lumps we had coming whether we liked it or not.

There was, of course, a fairly straightforward reason as to why many Canadians with disabilities associated with COPOH thought that we should be an active participant. Aside from the challenge to a subsection -- Section 241(b) -- of Canada’s Criminal Code, future interpretations of no less than three important Charter of Rights and Freedoms sections stood to be affected by how the court ruled in the Rodriguez case. In particular, there was considerable concern that a finding by the Supreme Court that S. 241(b) of the Criminal Code was not discriminatory could seriously limit the application of S. 15 of the charter. For example, in the lower courts there was a determination that it was not the Criminal Code provision that prevented Ms. Rodriguez from killing herself, but rather the physical limitations of the disease. It was therefore of crucial importance to ensure that the existing human rights law on adverse impact discrimination be recognized as applicable to S. 15 of the charter.

Further, many persons with disabilities were concerned about the implications of deciding Ms. Rodriguez’s case under S. 7 of the charter, which guarantees to all persons the right to "life, liberty and security of the person." On the one hand, we would support an interpretation of S. 7 that would protect personal dignity as part of the right to life and security of the person. On the other hand, the notion that the right to life also includes the right to die -- and the right to die with dignity -- could result in judgments being made about the value of certain peoples’ lives and whether they are worth living. A decision under S. 7 of the charter could have consequences for persons with disabilities far beyond the issue of assisted suicide.

Also of concern was the application of S. 1 of the charter and whether a complete ban on assisted suicide, rather than safeguards, could be considered a "reasonable limit" on the interference with equality rights. With these concerns in mind, it became clear that COPOH must spring from the "worry" to "action" mode.

As consensus around our position developed, we engaged the services of Advocacy Resource Centre for the Handicapped (ARCH)’s industrious legal staff: Ann Molloy, David Baker and Janet Budgell. Our final position reflected the opinion and experience of the country’s disability community in two different ways. Thus: "Where disability results in a persons’ autonomy being compromised or lost," we state in our written documentation to the courts in support of Rodriguez’s claim, "every effort must be made to find inclusive methods of enabling the person to achieve equality...Self-determination...will not be realized when choices are restricted or non-existent." And finally, "Where a disability makes it physically impossible for a person to commit suicide unassisted, Section 241 adversely affects, and therefore discriminates against, persons with disabilities." In consequence, our stand for the elimination of all forms of legally-protected discrimination remains consistent and unequivocal.

But this is not the same as saying that we advocate the immediate suspension of Criminal Code S. 241(b). Rather, we propose a constitutional exemption in conjunction with a two-year period, wherein the government can modify current law so that it both accommodates and protects people with disabilities, taking full account of both our need for autonomy on the one hand, and our vulnerability on the other.

The greater part of our written and oral presentations and our predominant reason for intervening in this case involved addressing the issue of safeguards. COPOH factum outlines not only the need for safeguards, but also some of the forms that they might conceivably take. As for Sue Rodriguez, we supported her request for an individual remedy, with the courts to provide similar treatment to similar cases in the meantime.

If we weren’t aware of it before, we soon learned why many activists are so passionately and adamantly opposed to more power for doctors and institutions, wherever and whenever the lives of people with severe disabilities are at stake. Coroners’ reports and eyewitness testimony provide just two sources of a surprisingly large store of evidence of the tendency of hospital personnel to cut costs while devaluing the lives of persons with disabilities.

Ontario Judge, Sam Filer, who also has ALS, remains active and working three years after being admitted to hospital with pneumonia. As a result of the progression of the ALS, he uses a respirator. A section of the COPOH factum to the court quotes his account of what happened to his wife on that occasion: "Six attending physicians encircled her, offering assurances that it would be inhuman not to let me die with dignity; that my care would become financially ruinous; that we had an infant at home to whom Toni owed her devotion; that there is, not could be, but is, no quality of life once ventilated; and that Toni had 10 minutes within which to make the decision."

Unfortunately, such attitudes are anything but uncharacteristic. "A major teaching hospital in Winnipeg," states the COPOH factum elsewhere, "has established a policy that if a patient with muscular dystrophy is admitted suffering from pneumonia, no information will be provided about the availability of a respirator."

The dual pressures of costs and professional callousness must not be allowed to limit the expansion of individual rights. For COPOH, the Rodriguez case challenges Canadians to find ways of ensuring individual rights while guaranteeing that the lives of vulnerable people with disabilities are not put in jeopardy.