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The Auton Case: The Intervener's Factum | The Many Varieties of Being Written Off


AN AUTISTIC AT THE SUPREME COURT

The Auton Case: Application, Opposition, Order

1. THE APPLICATION:                            
(a) Application for Leave to Intervene
(b) Affidavit of Michelle Dawson
(c) Affidavit of Laurent Mottron

2. THE OPPOSITION:             
(a) The Parents Oppose
(b) The Government Opposes
(c) Response to Opposition

3. THE ORDER






1(a). THE APPLICATION: Application for Leave to Intervene


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
(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 (Appellants on Cross-Appeal)



                                               

 NOTICE OF APPLICATION FOR LEAVE TO INTERVENE
(Rule 55, Rules of the Supreme Court of Canada)

 

NOTICE OF MOTION


TAKE NOTICE that Ms. Michelle Dawson will apply to a judge of this Court, at a date to be fixed by the Registrar, pursuant to Rule 55 of the Rules of the Supreme Court of Canada, and for an order pursuant to subsection 19(5) permitting oral argument at the hearing of the appeal.

AND FURTHER TAKE NOTICE that the following documents will be referred to in such motion:

Tab 1:        Affidavit of Michelle Dawson

Tab 2         Affidavit and curriculum vitae of Professor Laurent Mottron

and such further or other material as counsel may advise and be permitted.

AND FURTHER TAKE NOTICE that the said motion shall be made on the following grounds:

1.
The Intervener is concerned the judgments in the courts below both reveal a fundamental perception of autistic individuals that is inconsistent with the notions underlying the prohibition of discrimination found in fundamental Canadian values;

2.
Particularly, the judgments imply that it is necessary for autistic individuals to survive in Canadian society for them to be “treated” such that they become indistinguishable from non-autistic individuals;

3.
This is inconsistent with the principles elaborated by this Court in Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241 which confirmed that it was society’s obligation to adapt to the needs of individuals with disabilities, rather than the opposite;

4.
A review of the record in the courts below indicates that no testimony nor any representations were made by autistic individuals who could have educated the court on the benefits of certain autistic traits for the individual and society;

5.
The applicant is concerned that the judgments of the court below appear to endorse the principle that a particular type of treatment (Applied Behaviour Analysis) constitutes a medically necessary treatment for autistic individuals such that the failure of parents to provide that treatment or the failure of autistic individuals to seek that treatment could constitute a deprivation of basic medically necessary principles;

6.
If granted leave to intervene, the Intervener would prepare a factum advocating that the government in fact provide services necessary to assist autistic individuals to fully enable them to participate as contributing members in Canadian society and that a failure to do so constitutes discrimination.

7.
However, the Intervener would also advocate that this Court establish the principle that any decisions regarding “treatments” and services available to autistic individuals must seek and obtain input from the autistic individuals themselves, in order for governments to meet their obligations under section 15 of the Charter;

8.
In addition, the Intervener would argue that, in the present case, no finding can be made under section 7 of the Charter, since the factual underpinning required for such a finding, evidence from the autistic individuals themselves, or at the very least others similarly situated, is absent from the record in this case;

9.
The Intervener proposes to file a factum not exceeding twenty pages and oral argument of fifteen minutes;




DATED AT MONTREAL, this 11th day of February 2004.


Doug Mitchell
IRVING, MITCHELL & ASSOCIATES
4119 Sherbrooke Street West
Westmount, Quebec
H3Z 1A7

Tel:  (514) 935-2725
Fax:  (514) 935-2999
Email:  dmitchell@irvingmitchell.com


Solicitors for the Applicant to Intervene
Michelle Dawson



ORIGINAL TO:  THE REGISTRAR


COPIES:



^


1(b). APPLICATION: Affidavit of Michelle Dawson


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
(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 (Appellants on Cross-Appeal)



AFFIDAVIT OF MICHELLE DAWSON



I the undersigned, Michelle Dawson, postal worker, residing and domiciled at [street address], Montreal, Quebec, having been duly sworn hereby depose and say:


1.
I am an autistic adult, having been diagnosed with autism in 1993-94;

2.
I was not diagnosed as a child, not because I was different from the infant petitioners in these proceedings, but because early diagnosis of autism was not available at the time and place I was a child;

3.
Contrary to the portrait presented of autistic individuals in both the judgments in the courts below, and in the proceedings, I am intelligent; I speak and communicate clearly.  I have held employment with Canada Post as a mail carrier for over fifteen years.  My employment record is exemplary.

4.
In addition, in the past two years, I have worked extensively with Dr. Laurent Mottron, a respected expert in autism, in assisting him to better understand the nature of autism.

5.

The judgments in the courts below paint a dramatic picture of the “doom” that autistic individuals are destined for in the absence of treatment.  Madam Justice Allan concluded:

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.
6.
In my view, this conclusion is a complete misrepresentation, due probably to the fact that no autistic individuals were asked to testify before Judge Allan. Most autistic individuals have not in fact received “treatment”, myself included, yet they in no way meet this description;

7.
While my autism causes many difficulties for me in the course of my daily activities, my belief is that if Canadian society were more tolerant of my disability, I could function much more effectively as a member of Canadian society;

8.
Furthermore, I believe that because of the features associated with autism, my autistic characteristics provide me with certain strengths and advantages not available to “normal” Canadians;

9.
I am extremely concerned that these strengths are not appreciated by many parents and professionals dealing with autism who view it as their role to make the autistic individual “normal”;

10.
Similarly, not so long ago, it was thought by many societies, scientists, and parents to be necessary to “treat” homosexuality, with an early intensive behaviour intervention with the stated goal of preventing or curing homosexuality.

References:  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.; Rekers, G.A., and Lovaas, O.I. (1974). Behavioral treatment of deviant sex-role behaviors in a male child. Journal of Applied Behavior Analysis, 7, 173-90. ; Rekers, G.A., Lovaas, O.I., and Low, B. (1974). The behavioral treatment of a "transsexual" preadolescent boy.  Journal of Abnormal Child Psychology, 2, 99-116.

11.
In fact, the researcher who developed the program which the Respondents are seeking to have provided to their children, Dr. Ivar Lovaas, appears to have been a proponent of this “treatment” of homosexuality.  In 1977 he wrote:

"For example, it has been proposed 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 […] Once parents and professionals have concluded that a boy has a gender disturbance, a therapist cannot ethically refuse to treat the child.”

Reference:  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]

12.
Likewise, the only approach advocated in these proceedings to deal with autism is to treat it so as to render autistic persons indistinguishable from non-autistic persons, and to measure the progress and achievement of an autistic person by the standard of to what extent the autistic resembles a non-autistic;

13.
In my view, this denies the very humanity which the Charter is supposed to protect.  Yet it is implicit in the basis of the Respondents’ claim;

14.
This is demonstrated by another writing of Dr. Lovaas, who in 1993 wrote about autistic persons:
“Instead, the fascinating part to me was to observe persons with eyes and ears, teeth and toenails, walking around yet presenting few of the behaviors that 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."

Reference:  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. [at p. 620]

15.
In my view, this position 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”.

16.
In addition, the claim in these proceedings is that the failure to provide this particular treatment constitutes a denial of Charter rights under section 7.

17.
The basic premise underlying this view does not appear to have been questioned by either the parties or the courts, yet it runs counter to the statement of this court in Eaton v Brandt County Board of Education where this court 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.
18.
Many autistic individuals, such as myself, are not seeking to become indistinguishable from non-autistics.  What we require is understanding, appreciation and respect for the fact that we are different, and that this difference can in fact be positive;

19.
In my view, this perspective, that society should accommodate itself to the special characteristics of autistic individuals, is absent from the judgments of the courts below and of the pleadings of the parties;

20.
In addition, no autistic individuals testified or participated in the process.  Yet there are autistic individuals who could have coherently and cogently explained the realities of autism, with both its benefits and weaknesses to the courts.

21.
The courts were only left with the perspective of parents and the state in what became an argument over who was responsible to assume the costs of dealing with the disability;

22.
I believe that the perspective I could bring to this Court would be of assistance to the Court and allow it to have a fuller understanding of the issues before it;

23.
I know of no association or group seeking to intervene in these proceedings who could bring the true perspective of autistic individuals;

24.
While several groups and associations exist to promote the rights of autistic individuals, in my experience, they are usually dominated by parents and professionals, and very seldom have any input from autistic individuals, even when the autistics seek to participate in these organizations.

25.
The Supreme Court of Canada is the highest court of the land and is being asked to consider and render a decision which may affect the lives of many autistic individuals;

26.
I believe it is essential that the perspective of at least one autistic individual be present before the court before it makes a decision on this vitally important issue.



AND I HAVE SIGNED:


(S) Michelle Dawson
__________________________________
MICHELLE DAWSON


Solemnly declared before me at Montreal,
this 11th day of February 2004

(S) Mary Eleftheriadis #148840
________________________________________
Commissioner for Oaths for the
judicial district of Montreal



^


1(c). APPLICATION: Affidavit of Laurent Mottron


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
(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 (Appellants on Cross-Appeal)


                                               

AFFIDAVIT OF LAURENT MOTTRON



I, the undersigned, Laurent Mottron, psychiatrist, residing and domiciled at [street address],  Montreal, Quebec, having solemnly affirmed, do hereby state:

1.
I am presently a Professor of Psychiatry in the Faculty of Medicine at the Université de Montréal; where I have taught for the last 10 years a practising psychiatrist at Hôpital Rivière des Prairies;

2.
During those years, I have concentrated my research in the field of autism.  I am also currently the director of a laboratory which studies information processing in autism, as well as a specialized clinic for the diagnosis of autism; and the leader of several autism research projects funded by the Canadian Institutes of Health Research.  A copy of my curriculum vitae is attached as Exhibit A-1 to this my affidavit;

3.
I met Michelle Dawson  fortuitously three years ago, because we were both featured on a television program on Radio-Canada called “Enjeux”.  This particular program focussed on the issue of autism;

4.
While I have had many occasions to work with autistic individuals during my career, few of them have taught me as much as Ms. Dawson has.

5.
Ms. Dawson has a tremendous understanding of both the difficulties faced by autistic individuals in our society, as well as the tremendous inherent strengths of many of these individuals.  She also has a remarkable ability to present her views coherently and cogently;

6.
In fact, in my view, her level of knowledge about scientific issues related to cognition and learning in autism exceeds that of most academics I work with.

7.
We recently proposed to her that she be affiliated with our team, considering the quality of the input she is able to provide on all the work done and the public positions taken by this laboratory.

8.
We are in the process of supervising two PhD projects directly inspired by her ideas.

9.
In sum, this extremely qualified person has something to say and has to be carefully heard. Her opinions are innovative, strongly grounded in scientific and factual knowledge, and are the result of a very high standard of reflection.

10.
If my personal experience is a reliable guide, I believe Ms. Dawson’s views, if attended to, would be of tremendous assistance to this Court in dealing with a profoundly challenging subject;



AND I HAVE SIGNED:

(S) Laurent Mottron
__________________________________
LAURENT MOTTRON


Solemnly declared before me at Montreal,
this 11th day of February 2004

(S) Mary Eleftheriadis #148840
________________________________________
Commissioner for Oaths for the
judicial district of Montreal



^


2(a). THE OPPOSITION: The Parents Oppose:

(February 26, 2004)

RE: AGBC et al. v. Connor Auton, et al.
Court File No. 29508


“We are the solicitors for the Respondents in the above-noted appeal and write to set out our position with respect to the several applications for leave to intervene now before the Court. […]

“The Respondents oppose the applications for leave to appeal by: […] Michelle Dawson because, in our respectful opinion, the issues will be adequately canvassed by the Court by those referred to above, and of course the parties themselves. […]”

(the above is an excerpt; for the complete document click here [136k]
)



^


2(b). THE OPPOSITION: The Government Opposes:


(March 1, 2004)

Re: The Attorney General of British Columbia and the Medical Services Commission of British Columbia v. Auton et al.
File Number 29508

[…]

“We are in receipt of nine applications for leave to intervene in the above captioned matter. The Appellant, Attorney General of British Columbia, submits that the interests of many of the proposed interveners are so conjoined that they should not be allowed to file separate factums, or to make separate oral submissions, assuming the right to make oral submissions is granted. The Attorney General further submits that several of the proposed interveners, viz., DAWN Canada, the Society for Making Autism Readily Treatable, and Michelle Dawson cannot provide a unique perspective on the issues in this case and as such, their applications should be denied. The position of the Attorney General with regard to each of the applications is set out below. […]

“The proposed intervener, Michelle Dawson, indicates that she is an adult diagnosed with autism. Michelle Dawson seeks to place before this Court the perspective of an adult person with autism in respect of certain comments made in the Courts below regarding people with autism generally. Such a perspective was not before the Courts below. In the result, this application should be denied. […]”

(the above is an excerpt; for the complete document, click here [318k])



^


2(c). THE OPPOSITION: Response to Opposition


Direct line: (514) 935-2725
dmitchell@irvingmitchell.com
March 5, 2004

BY TELECOPIER

The Registrar
SUPREME COURT OF CANADA
Room 166
301 Wellington Street
Ottawa, Ontario
K1A 0J1

Attention:  Joanne Laniel


Re:    A.G.B.C. et al. v. Connor Auton et al.
          Court File No.:  29508           _____________


Dear Ms. Laniel,

We are the attorneys for Michelle Dawson in the above-noted appeal and wish to reply to the submissions by both the Appellants and the Respondents in response to Ms. Dawson’s Application for Leave to Intervene.

First of all, we are disappointed to note that both parties who claim to be representing the interest of autistic individuals claim that the intervention of an autistic individual would serve no useful purpose for this Court.  For the reasons that are in our Application for Leave to Intervene we believe it would be extremely beneficial for the Court to have the perspective of at least one autistic individual in this hearing.

In addition, we note with some irony that while the Respondents state that Ms. Dawson’s Application for Leave to Intervene should be refused since it adds nothing to the matter, the Appellant takes the position that Ms. Dawson’s intervention should not be granted since it represents a perspective that was not before the lower courts.

In our view, the Respondent is right that the perspective represented by Ms. Dawson’s intervention was in fact not before the courts below.  Furthermore, our view is that it is vital that such a perspective be before the court and it is precisely because of this unique perspective which Ms. Dawson’s intervention brings that the intervention should be granted.  This court has recognition in Harper that an individual with a particular expertise and experience can make a valuable contribution to the Court’s full understanding of the issues before it.

I trust this is satisfactory, and remain,

Yours very truly,



Doug Mitchell

DM/me

c.c.
Robert E. Houston
Lisa Mrozinski
Ed Van Bemmel
Sylvie Roussel
Christopher Rupar
Marie-France Major
Dougald Brown
Jula Hughes
Gary Boyd
Stephen Grace
Sarah Kraicer




^




Supreme Court of Canada



Cour suprême du Canada

March 17, 2004


17 mars 2004


ORDER
MOTION




ORDONNANCE
REQUÊTE



THE ATTORNEY GENERAL OF BRITISH COLUMBIA and THE MEDICAL SERVICES COMMISSION OF BRITISH COLUMBIA v. 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 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
(B.C.) (29508)


LEBEL J.:


UPON APPLICATIONS by the Canadian Association for Community Living and the Council of Canadians with Disabilities, the British Columbia Coalition of People with Disabilities, the Families for Early Autism Treatment of Ontario, the Autism Society Canada, the Families for Effective Autism Treatment of Alberta Foundation, The Women's Legal Education and Action Fund and the DisAbled Women's Network Canada, Ms. Michelle Dawson, the Society Making Autism Readily Treatable and the Friends of Children with Autism for leave to intervene in the above appeal;

After reviewing the material filed in support, it appears that not all these motions should be granted. I am of the view that the motion of the British Columbia Coalition of People with Disabilities, which belongs to the Canadian Association for the Autism Society of Canada, fails to indicate any distinct perspective which would be of assistance to the Court and should be dismissed. The applications of the Families for Early Autism Treatment of Ontario and the Families for Effective Autism Treatment of Alberta Foundation raise the same issues and the same perspectives. They should be granted leave to intervene, but will have to file a joint factum. The motion of the Society Making Autism Readily Treatable should not be allowed as it seeks to introduce new issues and additional evidence in the record. The other applications should be granted.

AND HAVING READ the material filed;

IT IS HEREBY ORDERED THAT:


The motion for leave to intervene of the applicant, the Canadian Association for Community Living and the Council of Canadians with Disabilities, is granted and the applicant shall be entitled to serve and file a factum not to exceed 20 pages in length on or before April 16, 2004.

The motions for leave to intervene by the applicants, the Families for Early Autism Treatment of Ontario and the Families for Effective Autism Treatment of Alberta Foundation, are granted and the applicants shall be entitled to serve and file a joint factum not to exceed 20 pages in length on or before April 16, 2004.

The motion for leave to intervene of the applicant, the Autism Society Canada, is granted and the applicant shall be entitled to serve and file a factum not to exceed 20 pages in length on or before April 16, 2004.

The motion for leave to intervene of the applicant, the Women's Legal Education and Action Fund and the DisAbled Women's Network Canada, is granted and the applicant shall be entitled to serve and file a factum not to exceed 20 pages in length on or before April 16, 2004.

The motion for leave to intervene of the applicant, Ms. Michelle Dawson, is granted and the applicant shall be entitled to serve and file a factum not to exceed 20 pages in length on or before April 16, 2004.

The motion for leave to intervene of the applicant, the Friends of Children with Autism, is granted and the applicant shall be entitled to serve and file a factum not to exceed 20 pages in length on or before April 16, 2004.

The motions for leave to intervene of the British Columbia Coalition of People with Disabilities and the Society Making Autism Readily Treatable are dismissed.

The requests to present oral argument are deferred to a date following the receipt and consideration of the written arguments of the parties and the interveners.

The interveners shall not be entitled to raise new issues or adduce further evidence or otherwise to supplement the record of the parties.

Pursuant to Rule 59(1)(a) the interveners shall pay to the appellants and respondents any additional disbursements occasioned to the appellants and respondents by their intervention.

            
J.C.S.C.
J.S.C.C.



For the full text of the Charter, click here.

For further developments see:
The Auton Case: The Intervener's Factum

The Many Varieties of Being Written Off
An Argument About Autism As Catastrophe


The Auton Case: The Decision of the Supreme Court

An Autistic Victory
The True Meaning of the Auton Decision


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