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Autistics Allowed: Autism Society Canada Speaks
For Itself
The
Auton Case: Application, Opposition, Order | The
Many Varieties of Being Written Off
AN AUTISTIC AT THE SUPREME COURT
The Auton Case: The Intervener's Factum
OVERVIEW
PART I – THE FACTS
PART II – ISSUES
PART III – ARGUMENT
PART IV – ORDERS SOUGHT
PART V – LIST OF AUTHORITIES
File No.: 29508
IN
THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL OF BRITISH
COLUMBIA)
BETWEEN:
THE
ATTORNEY GENERAL OF BRITISH COLUMBIA and THE
MEDICAL SERVICES COMMISSION OF BRITISH COLUMBIA
Appellants
(Appellants/Respondents
on
Cross-Appeal)
-and
CONNOR AUTON, an Infant by his Guardian Ad Litem,
MICHELLE AUTON, and the said MICHELLE AUTON in her
personal capacity, MICHELLE TAMIR, an Infant, by her
Guardian Ad Litem SABRINA FREEMAN, and the said
SABRINA FREEMAN in her personal capacity, JORDAN
LEFAIVRE, an Infant by his Guardian Ad Litem,
LEIGHTON LEFAIVRE, and the said LEIGHTON LEFAIVRE in
his personal capacity, RUSSELL GORDON PEARCE, an
Infant, by his Guardian Ad Litem, JANET GORDON
PEARCE, and the said JANET GORDON PEARCE in her
personal capacity
Respondents
(Respondents/Appellants
on
Cross-Appeal)
-and
ATTORNEY GENERAL OF CANADA,
ATTORNEY GENERAL OF NEW BRUNSWICK,
ATTORNEY GENERAL OF MANITOBA,
ATTORNEY GENERAL OF QUEBEC,
ATTORNEY GENERAL OF ONTARIO,
ATTORNEY GENERAL OF ALBERTA,
ATTORNEY GENERAL OF SASKATCHEWAN,
ATTORNEY GENERAL OF NEWFOUNDLAND AND
LABRADOR,
ATTORNEY GENERAL OF PRINCE EDWARD ISLAND,
ATTORNEY GENERAL OF NOVA SCOTIA,
CANADIAN ASSOCIATION FOR COMMUNITY LIVING AND
THE COUNCIL OF CANADIANS WITH DISABILITIES,
WOMEN'S LEGAL EDUCATION AND ACTION FUND AND
THE DISABLED WOMEN'S NETWORK CANADA,
AUTISM SOCIETY CANADA,
MICHELLE DAWSON,
FAMILIES FOR EFFECTIVE AUTISM TREATMENT OF ALBERTA
FOUNDATION, FRIENDS OF CHILDREN WITH AUTISM,
AND
FAMILIES FOR EARLY AUTISM TREATMENT OF ONTARIO
Interveners
FACTUM OF THE INTERVENER, MICHELLE DAWSON
OVERVIEW
1.
|
The fundamental premise
underlying section 15 of the Charter of
Rights and Freedoms is that Canadians do
not live in a society where disabled persons
are obliged to accept passively the judgments
and treatments imposed on them for what others
perceive as their own good. Canadian
society is not supposed to assume that
disabled persons cannot participate in or
contribute to this society unless they
undertake to become or to resemble those whom
society does not regard as disabled.
|
2.
|
Unfortunately, this assumption
is present throughout these proceedings and in
those in the Courts below. Ms Dawson’s
intervention seeks to alert this Court to the
dangers of perpetuating the assumptions made
by the parties, the Courts and the other
interveners, who have all presumed to engage
in a process where decisions are to be made
about the best interests of autistic
Canadians. Yet not one Canadian autistic was
either heard or consulted. Such an exercise is
in fundamental contradiction to the principles
underlying the Charter.
|
3.
|
The judgments in the courts
below, accepting the submissions of the two
parties before them, present a unified view of
untreated autistic individuals, who are
described as hopeless, unable to communicate
and to learn, and expensively doomed to
isolation and institutionalization.
|
4.
|
Autistic individuals have in
consequence been judged by the courts below to
require “medically necessary” early intensive
behaviour intervention (“IBI”), based
on the principles of Applied Behaviour
Analysis (“ABA”). Under this treatment,
success is considered to be achieved when the
individuals lose their autistic nature and
traits, and become, or appear to become,
indistinguishable from non-autistic Canadians.
|
5.
|
The Charter does not
exist to promote these stereotypes and
prejudices by allowing equality, dignity, and
participation only to those who succeed in a
“medically necessary” treatment to eradicate
their differences and render them
indistinguishable from Canadians judged to be
“normal”.
|
6.
|
The Charter exists to
prevent the life, liberty, and security of
individuals with differences from being
diminished or devalued through discrimination.
The Charter does not exist to promote
the view that only “normal” Canadians, or
Canadians striving to be “normal”, can enjoy
life, health, liberty, security, and dignity.
|
7.
|
The Charter
exists to protect Canadians with differences
from having their worth, dignity, and
commensurate treatment being finally
determined in their absence, and on the basis
of prejudicial and stereotyped descriptions of
themselves adopted for whatever reason by
parties with competing agendas and interests.
|
8.
|
These proceedings reveal a large
discrepancy between fundamental Canadian
values expressed in the Charter, and
the treatment and portrayal of autistic
individuals.
|
9.
|
The proceedings to this point
have been so gravely flawed in the gross
stereotyping of and the denial of the basic
humanity of autistic individuals that the
constitutional questions at issue can only
with great caution, if they can at all, be
addressed without risking great and permanent
harm to those whose well-being is supposedly
at issue.
|
10.
|
While Ms Dawson has a specific
diagnosis of autism, and was similarly
situated to some of the infant Respondents as
a child, she agrees, for the purpose of this
intervention, to use the word autism to
describe all those with autism spectrum
diagnoses.
|
11.
|
Contrary to the portrayal of
autism presented by the parties, Ms Dawson is
intelligent and communicates, she speaks and
writes. She lives independently and has worked
as a postal worker for many years. She is
particularly well qualified to comment on some
of the basic premises accepted and found as
facts in the courts below.
|
12.
|
Ms Dawson rejects the accounts
of the facts provided by both the Respondents
and the Appellants. While an inventory of the
problems with these accounts would exceed the
constraints of this intervention, it is
central for this Court to appreciate that the
premise on which both accounts are based must
be rejected. It is also essential for
this court to keep in mind that no autistic
individual testified in the proceedings in the
courts below.
|
13.
|
The basic premise of the parties
is that without “effective treatment”,
autistics are doomed. Only evidence supporting
this premise was provided, this premise
apparently being suitable to the needs of both
parties. For example:
“It is beyond dispute that autism is
a devastating disability both for the
children, who are unable to communicate with
others and relate to their surroundings, and
for their families. Without effective early
intervention, the majority of autistic
children require extensive and indefinite
societal support.”
|
Reasons
for Judgment of Allan J., March 31,
1999, at para 8, Appellants’ Record,
p. 11
|
“Unless their condition is
successfully treated, almost all autistic
children are doomed to a life of physical,
emotional, social, and intellectual
isolation and eventual institutionalization
- a tragic outcome for the children, their
families, and society.”
|
Reasons for
Judgment of Allan J., July 26, 2000,
at para 4, Appellants’ Record, p. 67
|
“Without effective treatment, autism
is a lifelong affliction that results in the
placement of over 90% of untreated children
in group homes or other residential
facilities. Only one of 64 children will
show any improvement without treatment.”
|
Reasons for
Judgment of Allan J., July 26, 2000,
at para 11, Appellants’ Record, p.
70 [Repeated with emphasis added in
the Reasons for Judgment of Saunders
J.A., Appellant’s Record, p. 173]
|
|
14.
|
There are fundamental
questions and considerations which, regardless
of their essential nature, appear to have been
of no interest in proceedings where autism was
accepted by all non-autistic participants to
be, if untreated, very nearly a death
sentence. This court should not accept
factual findings made in such circumstances.
|
PART II: ISSUES
15.
|
Ms Dawson will limit her
intervention to the constitutional issues
stated by the Chief Justice and will not
address the additional issues proposed by the
parties:
1.
|
Do the
definitions of “benefits” and “health
care practitioners” in s. 1 of the Medicare
Protection
Act, R.S.B.C. 1996, c. 286, and
ss. 17-29 of the Medical and
Health Care Services Regulation,
B.C. Reg. 426/97, infringe s. 15(1) of
the Canadian Charter of Rights and
Freedoms by failing to include
services for autistic children based
on applied behavioural analysis?
|
2.
|
If so, is the
infringement a reasonable limit
prescribed by law as can be
demonstrably justified in a free and
democratic society by s. 1 of the
Canadian Charter
of Rights and Freedoms?
|
3.
|
Do the
definitions of “benefits” and “health
care practitioners” in s.1 of the Medicare
Protection
Act, R.S.B.C. 1996, c. 286 and
ss. 17-29 of the Medical and
Health Care Services Regulation,
B.C. Reg. 426/97, infringe s. 7 of the
Canadian Charter of Rights and
Freedoms by failing to include
services for autistic children based
on applied behavioural analysis?
|
4.
|
If so, is the
infringement a reasonable limit
prescribed by law as can be
demonstrably justified in a free and
democratic society under s.1 of the
Canadian Charter
of Rights and Freedoms?
|
|
PART III: ARGUMENT
The Nature of Autism
16.
|
The nature of autism is
unknown. No one knows what autism is. Autism
is diagnosed behaviourally, but the
organizing idea(s) or central difference(s)
resulting in these behaviours is unknown.
|
17.
|
Given the limited
evidence before her, it is not surprising
that the trial judge would equate the nature
of autism with diseases which are known to
be fatal if not treated:
“As one example, the Crown
submits that if an autistic child gets
cancer, he or she will receive treatment
for cancer. That justification is
misguided as well as unfortunate. It
ignores the fact that autism is a
medical disability just as cancer is and
that both require treatment. As the
petitioners point out, autism is a
disability so severe and comprehensive
that it affects all aspects of their
lives. Their core medical need is for
treatment that will permit them to break
out of their isolation. They require
treatment for that condition, as well as
any other conditions that they may be
unfortunate enough to incur additionally.”
(emphasis is ours)
|
Reasons
for Judgment of Allan J., July 26,
2000, at para 134, Appellants’ Record,
at p. 119
|
|
See
also Reasons for Judgment of
Allan J., July 26, 2000, at para 67
and 136, Appellants’ Record, at p. 94
and 120
|
|
18.
|
It must be underlined
that autism is not a disease. Untreated
autistics do not deteriorate and die.
Mistreated autistics often deteriorate. This
should not be assumed to be a feature of
autism. Mistreated non-autistics, subject to
prejudicial low expectations and poor care,
also deteriorate.
|
19.
|
The trial judge also
equated the treatment of autism with the
treatment of mental illness. Autism is not a
mental illness. Autistics have suffered
terribly for being treated inappropriately
and unethically as though mentally ill. It
is well known that autistics have, in the
past and present, become trapped in the
mental health system. Subject to unethical
medication, restraint, and incarceration,
they have been destroyed, often despite
functioning competently prior to being
mistreated.
|
Reasons
for Judgment of Allan J., July 26,
2000, at para 137, Appellants’ Record,
at p. 120
|
|
20.
|
Autistic people, like
non-autistics, sometimes develop serious
physical diseases, and sometimes suffer from
mental illness. No evidence was sought from
untreated autistics in these situations who
could have explained to the court the
distinction between a physical or mental
illness for which “medically necessary”
treatment must be sought, and autism, a
difference which, being integral to the
person, must be respected. No evidence was
sought from autistic persons for any
purpose.
|
21.
|
This is perhaps not
surprising given the unchallenged position
of the Respondents that untreated autistics
cannot communicate, which is reflected in
their Factum, at para 63
“Without treatment,
they are deprived of the chance to learn
how to communicate with the world and
learn from it, and of the means to avoid
injuries, thus engaging both their
psychological and physical integrity.”
|
22.
|
Having reviewed the
record materials, Ms Dawson is unable to
find any reliable source for the statement
that untreated autistics “cannot”
communicate.
|
23.
|
No allowance is made in
the Courts below that while communication
may not develop on schedule, and that it may
be difficult, it will in fact develop, and
in many cases, develop completely.
|
24.
|
The autism spectrum
contains a diagnostic category, Asperger
syndrome, which requires, for its diagnosis,
that the child develop speech on schedule.
In these proceedings, even these children
are assumed to be unable to communicate
without treatment. This alone should cause
this Court to question the reliability of
any of the factual findings of the courts
below or claims of the parties to these
proceedings.
|
25.
|
In addition, speech is
not synonymous with either “language” or
“communication”. Were that true, the
petitioners in Eldridge would have
been described as being unable to
communicate. With communication, as with
learning and intelligence, the parties in
these proceedings agreed, and the Courts
accepted, that these abilities either must
be typical, that is “normal” in form, or
they are judged not to exist at all in
autistics.
|
26.
|
It is true that
“untreated” autistic communication,
learning, and intelligence, as well as order
and progress of development, fail to be
typical. It is false to conclude from this,
or to assume that autistic communication,
learning, intelligence, and developmental
progress are either non-existent, or
inferior and worthless.
|
27.
|
No allowance is made by
either the parties, or the Courts below that
“untreated” autistic traits, which result in
atypical learning and intelligence, have
great benefit both to autistics and to
society. The inherent strengths of
autistics, based on measurable differences
in cognition (perception, attention, memory;
and kind, not level, of intelligence) are
unavailable to non-autistics, and according
to the principles of ABA as well as its
practice, are unavailable to treated
autistics.
|
28.
|
Autistic
characteristics, which may well in fact be
strengths, are considered “wrong” in these
proceedings, as evidenced by descriptions by
the Respondents and in the judgments below,
in which autistic ways of playing, moving,
and attending are described as defective and
are slated to be corrected or extinguished:
“In a group of peers, a
child with autism is likely to avoid
contact and remain isolated from the
group. Instead of playing imaginatively
with toys, autistic children often engage
in repetitive behaviour such as arranging
objects into neat rows or flapping their
hands in front of their eyes.”
|
Reasons
for Judgment of Allan J., July 26,
2000, at para 10, Appellants’ Record,
at p. 70
|
|
29.
|
Untreated autistic
individuals have contributed greatly to
society through their autistic traits. In
contrast to the doom painted by the parties
for all untreated autistics, autistics are
in the workforce, they are in academe, they
are parents (often of autistic children),
they are artists, architects, engineers,
physicists, musicians, and writers. Many
have, through the brilliance, innovation,
impartiality, persistence, and courage with
which they are gifted, disproportionately
contributed to the progress and
enlightenment of society.
|
30.
|
It would be an error
with historical resonances (for example,
assuming that the woman or the black person
who is intelligent is the rare exception) to
assume that untreated autistics who achieve
autonomy and much else are just freakish
oddities.
|
31.
|
If the prejudices and
assumptions present in the conclusions of
the courts below are allowed to stand,
untreated autistics who do seek to
participate in and contribute to Canadian
society will continue to face intolerance
and discrimination.
|
The Treatment of Autism
32.
|
Contesting the presumed
effectiveness of ABA-based early IBI may be
futile at this point in the proceedings. The
position of the two parties was so similar on
this issue that the trial judge used the
testimony of the government’s main witness to
support the parents’ position.
|
Reasons for
Judgment Allan J., July 26, 2000, at
para 52, Appellants’ Record, at p. 89
|
|
33.
|
None of the evidence about the
efficacy or medical necessity of ABA dealt
with the serious ethical issues that arise
when powerful behaviour therapies are applied
to clients who can’t consent. Since scientists
and societies have historically made
significant errors in deciding which
behaviours (left-handedness, homosexuality)
should be treated, and in which kinds of
people they deem acceptable and valuable,
behaviour therapies involving non-consenting
clients require an ethical review process in
order to decide which behaviours should be
treated. This process should involve affected
parties from the community, as well as experts
in science, ethics, and the law.
|
34.
|
No such ethical review process
has happened in the development and practice
of ABA as an autism treatment. In the absence
of decisions about what behaviours can
ethically be “treated”, the goal of the
indistinguishable child has been and remains
unquestioned. All autistics in ABA programs
are judged as to their progress towards
achieving this goal. Autistics have had no
part in any research design or treatment
decisions in ABA programs. All such roles have
been taken by parents, governments and service
providers.
|
35.
|
Since the central difference(s)
in autism remain unknown, nobody has any idea,
nor has studied, which behaviours are adaptive
or maladaptive to that difference. That many
“normal” behaviours may be painful,
frightening, or useless to an autistic (i.e.
eye contact) has not been considered. This
Court is being asked to endorse a particular
form of treatment, or at least approach to
treatment, without any evidence as to the
extent to which “odd” or “inappropriate”
autistic behaviours are entangled with
exceptional autistic abilities.
|
36.
|
Nobody has studied the
difference between an ABA best outcome (the
indistinguishable child) and someone like Ms
Dawson, who remains obviously autistic but has
a life encompassing learning, intelligence,
achievement, innovation, and autonomy, however
atypically. This Court, and the courts below,
were completely uninformed as to how
“successful” untreated autistics, those who
develop atypically and perhaps because of this
contribute greatly to society, achieve this
result. Little interest has been demonstrated
in autistics doing well in society as
autistics.
|
Section 15(1) of the Charter
37.
|
Equality, dignity, and the worth
of a person must not be contingent on that
person’s ability to be or act like persons
judged to be typical. Equal treatment requires
society to respect, accommodate and embrace
differences. To fail to do so is a violation
of the principles of equality. As this
Court has recently noted in Vriend:
“It is easy to say that everyone who
is just like “us” is entitled to equality.
Everyone finds it more difficult to say that
those who are "different" from us in some
way should have the same equality rights
that we enjoy. Yet so soon as we say any
enumerated or analogous group is less
deserving and unworthy of equal protection
and benefit of the law all minorities and
all of Canadian society are demeaned. It is
so deceptively simple and so devastatingly
injurious to say that those who are
handicapped or of a different race, or
religion, or colour or sexual orientation
are less worthy. Yet, if any enumerated or
analogous group is denied the equality
provided by s. 15 then the equality of every
other minority group is threatened. That
equality is guaranteed by our constitution.
If equality rights for minorities had
been recognized, the all too frequent
tragedies of history might have been
avoided. It can never be forgotten
that discrimination is the antithesis of
equality and that it is the recognition of
equality which will foster the dignity of
every individual.” (Emphasis added)
Vriend v. Alberta,
[1998] 1 S.C.R. 493, at para 69
|
38.
|
This is all the more so in the
case of a disability. This Court dealt
with this issue in Eaton, when it
stated:
“The principal object
of certain of the prohibited grounds is the
elimination of discrimination by the
attribution of untrue characteristics based
on stereotypical attitudes relating to
immutable conditions such as race or sex. In
the case of disability, this is one of the
objectives. The other equally important
objective seeks to take into account the
true characteristics of this group which act
as headwinds to the enjoyment of society's
benefits and to accommodate them. Exclusion
from the mainstream of society results from
the construction of a society based solely
on "mainstream" attributes to which disabled
persons will never be able to gain access.
Whether it is the impossibility of success
at a written test for a blind person, or the
need for ramp access to a library, the
discrimination does not lie in the
attribution of untrue characteristics to the
disabled individual. The blind person cannot
see and the person in a wheelchair needs a
ramp. Rather, it is the failure to make
reasonable accommodation, to fine-tune
society so that its structures and
assumptions do not result in the relegation
and banishment of disabled persons from
participation, which results in
discrimination against them.”
Eaton v. Brandt
County Board of Education, [1997] 1
S.C.R. 241, at para 67
|
39.
|
Ms. Dawson submits that not only
do these proceedings attribute untrue
characteristics to a whole category of
disabled persons, being autistic Canadians,
children and adult, but the treatment sought
to be imposed is fundamentally inconsistent
with the notion of respect for the individual
and the duty to accommodate. In fact, the idea
that society should accommodate the special
needs and characteristics of autistic
individuals is entirely absent.
|
40.
|
This Court is being asked to
endorse a treatment of a disability which
denies the autistic population and the
individuals whose interests are sought to be
advanced in these proceedings, the very human
dignity which the Charter is supposed
to protect. It makes the assumption that
autistic individuals can only be fulfilled
(and in fact can only be “human”) if they are
moulded to meet society’s expectation of what
is “normal”.
|
41.
|
It is difficult to imagine this
being tolerated in any setting. Canadian
society does not consider, for example, that
it is medically necessary surgically to alter
the appearance of children with Down syndrome
such that their appearance becomes
indistinguishable from that of children who do
not have Down syndrome. In fact, Canadian
society would probably strongly disapprove of
such a practice.
|
42.
|
However, parents may be
distressed because the appearance of their
Down syndrome children is stigmatizing to
their children. Parents may be genuinely
distressed because they cannot have a child
who is as much as possible indistinguishable
from typical children. If they succeeded in
having surgery for their children funded as
“medically necessary” treatment, the impact
would be felt by all those with Down syndrome,
by all those with differences labelled as
disabilities, and by all of society.
|
43.
|
While not in any way wishing to
diminish the emotions experienced by some
parents of autistic children, or their desire
to have their children become “normal”, Ms
Dawson feels that the Courts below were more
impressed with the need to provide relief to
the parents, rather than to the children. For
example, the trial judge noted:
“The adult petitioners (and the
families of autistic children ‘behind the
scenes’ in this litigation) are remarkable
individuals. As parents of autistic
children, they have endured emotional and
financial hardships and grief unknown to
most people. They have exerted tremendous
energy educating themselves and others,
including physicians, with respect to the
nature of the autistic disorder and the
efficacy of Early IBI.”
|
Reasons
for Judgment of Allan J, February 6,
2001, at para 49, Appellants’ Record, at
p. 153
|
|
44.
|
No similar comments are made
about the children themselves, or the anguish
that they may be experiencing by being forced
to subjugate their individuality to a
pre-conceived notion of normal or typical
behaviour or being constantly reminded by
society that an autistic individual’s
behaviour, interests and concerns are
unacceptable to the majority.
|
45.
|
This Court recognized in Eaton,
and in Eve, that while a parent’s
decision of what was in the best interests of
the child was entitled to respect, it was not
determinative. Furthermore, this Court
cautioned in Eve against being
overwhelmed by the distress or the motives and
love of the parents, stating:
“One may sympathize with Mrs.
E. To use Heilbron J.’s phrase, it is easy
to understand the natural feelings of a
parent's heart. But the parens patriae
jurisdiction cannot be used for her benefit.
Its exercise is confined to doing what is
necessary for the benefit and protection of
persons under disability like Eve. And a
court, as I previously mentioned, must
exercise great caution to avoid being misled
by this all too human mixture of emotions
and motives.”
|
E. (Mrs.) v.
Eve, [1986] 2 S.C.R. 388, at p.
429
|
|
46.
|
Implicit in these proceedings is
the notion that autistics are inhuman, and
must be therefore made human. It is only then
that their rights will have been respected.
This premise is completely inconsistent with Charter
principles.
|
47.
|
The Appellants in their Factum twice
refer to the intractability of autism to
treatment.
Appellants’ Factum, at paras 69, 76
|
48.
|
Ms. Dawson, who agrees with this
idea, interprets it differently from both the
Appellants and the Respondents. Autism is
intractable the way homosexuality is. As
homosexuality is integral to the homosexual,
autism is integral to the autistic.
|
49.
|
Those seeking equality rights in
Vriend were homosexuals, not parents of
children at risk for non-heterosexual
development. The homosexuals in Vriend
were not required to undergo ABA-based
treatment so as to become, or at least to
resemble, the heterosexuals whose equality
rights were protected.
|
50.
|
Like autism, homosexuality has
been treated by an ABA-based early IBI. This
treatment had the stated goal of preventing or
curing homosexuality. Dr Lovaas was the
principal investigator in this project, which
for many years was concurrent with his work in
early IBI for the other intractable pathology,
autism. Both projects had the goal of an
“indistinguishable” child. No tolerance or
accommodation was recommended for the
intractability of homosexuality. He stated:
“For example, it has been suggested
that the only appropriate goal of the
psychotherapist dealing with a homosexual
individual is to help him adjust to his
homosexual orientation and behavior. Some
critics go so far as to suggest that a
referral to a "Gay Counseling Center" is
even more appropriate, with the goal of
placing the individual in contact with
others like himself. We find this line of
argument to be totally unacceptable and
irresponsible.”
|
Rekers, G.A.,
Bentler, P.M., Rosen, A.C., and
Lovaas, O.I. (1977). Child gender
disturbances: A clinical rationale for
intervention. Psychotherapy:
Theory, Research and Practice, 14,
2-11, at p. 9
|
|
51.
|
Dr Lovaas’ position on
homosexuality may have reflected the majority
view in previous times, just as proponents of
extinguishing autistic traits may represent
the majority view today. The Charter
requires that the worth and treatment of
minority disadvantaged groups be independent
of prevailing popular views.
|
52.
|
As the Ontario Court of Appeal has
recently noted in Hislop:
“The Charter is
anti-majoritarian. It cannot be that the
entitlement to the benefits of s.15(1) is
subject to the majority views of the
electorate or that it is somehow dependent
on evolving social and political views.”
Hislop v. A.G. Canada, [2003]
O.J. no. 5212, at para 78
|
53.
|
Not only is the notion that
autistics are inhuman implicit in these
proceedings, it is explicit in the writings of
Dr. Lovaas, the person whose research is the
basis for the claim that ABA is a
scientifically validated treatment. In 1993 he
wrote about autistic persons:
“Instead, the fascinating part for me
was to observe persons with eyes and ears,
teeth and toenails, walking around yet
presenting few of the behaviors one would
call social or human. Now, I had the chance
to build language and other social and
intellectual behaviors where none had
existed, a good test of how much help a
learning-based approach could offer.”
|
Lovaas, O.I.
(1993). The development of a
treatment-research project for
developmentally disabled and autistic
children. Journal of Applied
Behavior Analysis, 26, 617-30
|
|
54.
|
Even were such a treatment
“effective” in changing observed behaviour in
childhood, the premise is completely
unacceptable in Canadian Society.
|
55.
|
Cost-benefit analyses are used
to promote the idea that funding IBI results
in great monetary savings. The Respondents
commissioned and provided their own, as well
as supplying one published in the science. The
Intervener Autism Society Canada has included
many cost-benefit analyses in its Application.
All such analyses are premised on the “facts”
that not one untreated autistic ever
contributes in any way to society; and that
untreated autistics are a catastrophic burden
on society.
|
Factum of the
Respondents, at p. 9
|
|
56.
|
Ms Dawson submits that groups
who are excluded from the entire public
discourse about themselves, and are in their
absence denigrated and infantilized by those
deemed qualified to decide their future, have
the worst and most expensive outcomes. This
can be seen in the history of aboriginal
people in Canada. It would be reprehensible to
perform a statistical analysis to prove that
aboriginal people are a burden on society
because they are aboriginal, then to propose
that society would profit greatly if only
aboriginal people became less aboriginal or
not aboriginal at all.
|
57.
|
The inability of autistics to
communicate has been stressed in the judgments
below, and by the Respondents. The conclusion
reached by the parties and by the courts below
is that because of this inability to
communicate, all autistic individuals are
necessarily unable to participate in society
or in decisions about themselves, and to
benefit from services.
|
58.
|
This position is directly
contrary to the decision of this Court in Eldridge,
to which frequent reference was made in the
courts below. The Appellants in Eldridge
were deaf individuals seeking the funding of
interpreters such that they may access health
care. The Appellants were not required to seek
“medically necessary” treatment to either make
them non-deaf, or to train them to act like
non-deaf persons. It was not said that because
they are deaf, if they do not strive to become
non-deaf, they are doomed and will be
institutionalized. It was not said that
because their communication fails to be
typical, they do not communicate at all and
cannot participate in society.
Eldridge v. A.G. B.C.,
[1997] 3 S.C.R. 624
|
59.
|
Ms Dawson has experienced first
hand that the inability to participate and
benefit from government services applies
equally in Canadian society to untreated
autistics who have fully-developed speech,
including those who communicate extremely
well, and are even called articulate.
|
60.
|
The inability to participate and
to benefit from services results from the
stereotypes and prejudices evident in the
judgments below, and in the Factums of the
parties, and in the applications of many of
the Interveners.
|
61.
|
Many organizations, including
those present in these proceedings, claim to
be fighting for the participation of
autistics. In fact, they themselves
consistently deny the participation of
autistics, regardless of the autistic’s
abilities, in their own organizations. It is
striking that not one of the Intervener groups
indicated in their Applications to intervene
that actual autistic individuals were
represented on their boards or on their staff.
Therefore, services sought for autistics
reflect the needs and agendas of parents and
other non-autistics. The services are those
which attempt to teach autistics to be
“normal” such that they can participate in
society by passing as non-autistic.
|
62.
|
Ms Dawson submits that if the
Respondents’ position is adopted, autistic
people will not have the same equality rights
enjoyed by non-autistics. Autistic people will
be seen as unworthy and undeserving of equal
protection and benefit of the law. Their
equality rights will amount to an obligation
to be or to act much less autistic or not
autistic at all.
|
63.
|
Further, accepting the
Respondents’ position will have the direct
effect of demeaning all autistic individuals
and rewarding those who have chosen to demean
autistics in order to fulfill their goals.
|
64.
|
The Appellants’ position is
equally untenable. They too have demeaned and
excluded autistics as necessary to achieve the
outcome they desire. Like the other
governments represented in theses proceedings,
they have failed utterly to provide autistics
with equal protection and benefit of the law.
They have contributed greatly to the
stereotypical and prejudiced views of autism
common in society and have based their
decisions on these grossly inaccurate views.
|
65.
|
As a result, autistics are
entirely at the mercy of circumstance, neither
being accommodated in even inexpensive,
rudimentary ways; nor being recognized as in
Canadian society as human beings with human
rights.
|
Section 7 of the Charter
66.
|
The Respondents and the
judgments below state that the alternative
to “effective” treatment of autism is a life
of isolation, dependency, hopelessness and
institutionalization for the autistic. The
doom awaiting all untreated autistics is
repeated and emphasized.
|
67.
|
Central to this view is the
Respondents’ portrayal of autism as an
appalling disorder, and as incompatible with
communication, learning, intelligence,
autonomy, achievement, integrity, growth,
participation, dignity, health, life, liberty,
and security.
|
68.
|
The Respondents provide one
alternative, a “medically necessary” treatment
replacing useless autistic traits with
non-autistic behaviours until the autistic
individual appears “normal”. They have
stressed the grim future that awaits all
autistics who are deprived of this treatment.
|
69.
|
Upholding the Respondents’
position carries the risk that for any
autistic child, the deprivation of “medically
necessary” treatment will be seen as the
mistreatment or neglect of that child. The
Respondents’ contention that this treatment
will remain optional is at least unrealistic,
if not irresponsible. This would somehow make
autism different from other catastrophic
illnesses, to which autism has been compared
in the judgments below, where depriving a
child of treatment may result in the
apprehension of that child.
|
70.
|
All provinces funding
preschool ABA have been deluged with demands
for ABA from ages 6 onwards. The Appellants
report demands for ABA for autistic children
up to age 19, and it is simply a matter of
time before ABA is equally demanded for
adults of all ages, or as a cradle to grave
service.
Appellants’ Factum, at para 114
|
71.
|
The security, liberty, and
possibilities of autonomous untreated autistic
adults can be seen as diminished and at risk
if the Respondents’ position is upheld.
Autistic traits will be seen as wrong or
“sick” and in need of treatment. Untreated
autistics failing to seek, resisting, or
refusing treatment would find themselves at
risk of losing employment, benefits, and/or
their freedom.
|
72.
|
Autistic individuals do not
belong in an institution. More so than
non-autistics, autistics require freedom and
privacy in order to survive, progress and
learn. Autistics can and do communicate.
Autistics can and do learn. But the public and
physicians have been educated to deny these
possibilities in untreated autistics, by the
Respondents and many organizations with
“autism” in their names.
|
73.
|
Ms Dawson is familiar with the
precarious state of the life, liberty, and
security of autistics in Canadian society.
Unlike deaf people, for instance, autistics
cannot identify themselves as autistic in most
situations without variously putting their
health, security, liberty, autonomy, and
employment at risk. Autistics learn not to
seek emergency care, since if they act
autistic, even while identifying themselves as
such, they are at risk of being
“institutionalized”, that is, committed
against their will.
|
74.
|
Autistics Canadians must face a
barrage of intolerance. They may have
repeatedly to explain that they are not
dangerous to themselves or others. They may
have to explain that autistic people talk.
They often are treated with suspicion by
health care professionals who “know” that
autism is incompatible with intelligence. Ms
Dawson is lucky to have found a sympathetic
health care professional for her basic medical
needs. Most autistics will not be so lucky,
and will face physicians “educated” by the
Respondents or their equivalents.
|
75.
|
The Respondents stress
the danger to autistics of self-injury. They
present this information as though autistics
hurt themselves just because they are
autistic. This approach must strongly be
objected to. Autistics who injure themselves,
or have in the past injured themselves, could
have explained why and under what conditions
they act this way.
|
76.
|
Ms Dawson submits that the
Respondent’s section 7 arguments must be
rejected since they have no basis in any
testimony or representation of the individuals
whose life, liberty, and security are at
issue. Such testimony or representation, being
easily available, seems actively to have been
rejected. Section 7 rights of individuals
cannot be decided, in the complete absence of
these individuals, by competing parties intent
on their own agendas.
|
77.
|
Further, in this case, upholding
the Respondents’ section 7 position,
predicated on the doom of all untreated
autistics, greatly risks significant
infringement of the section 7 rights of
autistic individuals, those whose well-being
is supposedly at issue.
|
78.
|
Ms Dawson equally rejects the
Appellants’ position on this issue, since the
government has been demonstrably negligent and
irresponsible in its treatment of autistics,
both in accepting and acting on grossly
prejudicial and stereotypical views of autism,
in the complete absence of input from autistic
individuals. It is this that has infringed on
the lives, liberty, and security of autistic
Canadians.
|
PART IV: ORDERS SOUGHT
79.
|
Ms Dawson notes that
both the Appellants and the Respondents have
answered the constitutional question issued
by McLachlin, C.J. in the same manner. The
first and third are responded to with “No”,
and the second and fourth do not apply. Ms
Dawson agrees with both the parties in these
responses.
|
80.
|
The following orders are
requested:
|
That the
Respondents’ request to uphold the
British Columbia Court of Appeal
finding of an infringement of
s.15(1) in the particular
circumstances of this case be
denied.
|
|
That the
Respondents’ request for the
cross-appeal to be allowed be denied
and:
a.
|
the
requested modification to the
remedy be denied.
|
b.
|
the request
for a finding that section 7
of the Charter has
been infringed by the
Appellants’ refusal or
failure to fund effective
autism treatment be denied.
|
That the
Appellants be directed to carry out
their responsibilities towards
autistic individuals, on the premise
that the values of Canadian society,
as represented by the Charter,
should be extended to these
individuals, and that they must for
their rights not be infringed, be
consulted as to what services they
require and how these services
should be provided.
|
|
The Whole
Respectfully Submitted.
___________________________________
IRVING, MITCHELL & ASSOCIATES
Attorneys for the Intervener Michelle
Dawson
|
|
PART V: LIST OF AUTHORITIES
Cases:
|
Cited
at
Paragraphs
|
E. (Mrs.) v. Eve,
[1986] 2 S.C.R. 388, at p. 429
|
45
|
Eaton v. Brandt
County Board of Education, [1997] 1
S.C.R. 241, at para 67
|
38
|
Eldridge v. A.G. B.C.,
[1997] 3 S.C.R. 624
|
58
|
Hislop v. A.G. Canada,
[2003] O.J. no. 5212, at para 78
|
52
|
Lovaas, O.I. (1993).
The development of a treatment-research
project for developmentally disabled and
autistic children. Journal of Applied
Behavior Analysis, 26, 617-30
|
53
|
Rekers, G.A., Bentler,
P.M., Rosen, A.C., and Lovaas, O.I. (1977).
Child gender disturbances: A clinical
rationale for intervention. Psychotherapy:
Theory, Research and Practice, 14,
2-11, at p. 9
|
50
|
Vriend v. Alberta,
[1998] 1 S.C.R. 493, at para 69
|
37
|
|