Court File Nos. C29797 & C29940

COURT OF APPEAL FOR ONTARIO

BETWEEN:

HER MAJESTY THE QUEEN

Appellant/Respondent

- and -

MAURICE GENEREUX

Appellant/Respondent

- and -

COUNCIL OF CANADIANS WITH DISABILITIES

Intervenor

FACTUM OF THE INTERVENOR

PART I - STATEMENT OF THE CASE

1. The Council of Canadians with Disabilities (hereinafter the "Intervenor") is a national, not for profit umbrella organization which represents people with a variety of disabilities. It is accountable to a membership of several hundred thousand individuals with disabilities, including persons who are living with HIV and/or AIDS. The Intervenor was established by people with disabilities to create a voice for disabled Canadians and to promote the full participation and equal opportunity and equal protection of the law for people with disabilities in Canadian society.

2. This case raises significant issues about the rights of people with disabilities. The Intervenor's primary submission is that it is essential that this Honourable Court fashion a sentence that provides a strong general deterrent in order to fulfill the purpose of the assisted suicide provisions in Section 241(b) of the Criminal Code: to preserve life and protect vulnerable persons. The Intervenor submits that the failure to impose a deterrent sentence would have a discriminatory and degrading effect upon the dignity and respect that must be accorded persons with disabilities, including particularly persons who are HIV positive and/or living with AIDS.

   PART II - STATEMENT OF FACT

3. The Intervenor agrees with the facts stated in the Factums filed by the Appellant Crown (the "Crown") and the Appellant Maurice Genereux ("Dr. Genereux, respectively").

   PART III - ISSUES AND THE LAW

   (a) Vulnerability of People with Disabilities

4. The history of disabled persons in Canada is a history of marginalization, exclusion and social devaluation. At the heart of this history, is the perception of disabled persons as abnormal, or as existing in tragic and unbearable circumstances. As a consequence of that perception, disabled persons have been exposed to victimization and discrimination.

5. Society attributes negative characteristics to disabled persons. These negative attitudes are reinforced by actions, attitudes and beliefs, which often characterize disabled persons as being less than human. The perception that disabled persons have lives that are of less value than the lives of individuals without disabilities, reinforces rationalizations for treating disabled persons prejudicially.

6. Persons with disabilities, including those who are HIV positive and/or living with AIDS, are at greater risk of being victimized. The physical and psychological challenges facing these individuals as a result of their disability, often requires them to be more dependent on caregivers, educators, physicians and, thus, makes them even more vulnerable to abuse.

    

7. In Battlefords and District Co-Op v. Gibbs (1994), 16 D.L.R. (4th) 109, (Sask. C.A.), the Saskatchewan Court of Appeal recognized that the negative attitudes and limitations experienced by disabled persons are not the direct result of their disabilities, but rather a function of how they are perceived. At p. 133, Madame Justice Jackson wrote:

   "Historically, the disabled have been stigmatized and shunned by our society. Ancient attitudes based upon ignorance and fear pervade many ideas about disabled members of our society. For many disabled persons, the greatest handicap many disabled individuals experience is not the limitations imposed by their disability, but the attitude of others toward their disability: D. Pothier, "Miles to Go: Some Personal Reflections on the Social Construction if Disability" (1992) 14 Dalhousie L.J. 526 at p. 526. These attitudes are deeply ingrained and frequently function at the subconscious level." (Emphasis added)

8. Similarly, Lepofsky, M.D. and Bickenbach, J.E. in "Equality Rights and the Physically Handicapped", Bayefsky and Eberts, Equality Rights and The Canadian Charter of Rights and Freedoms (Toronto: Carswell, 1985) recognize this phenomenon at p. 326:

   "At the core of traditionally-held attitudes towards persons with disabilities is the belief that a disability renders one substantially incapable of enjoying life. Blindness, deafness, reliance upon a wheelchair and the like are typically perceived as perpetual tragedies unjustly imposed on the undeserving. Those "suffering" from these conditions deserve pity, for they have been robbed of the true fullness of life; they are not whole persons."

9. In the case at bar, the Intervenor submits that the fact that the victims of Dr. Genereux's crimes were HIV positive, should not be accepted as a mitigating factor on sentence. Indeed, the Appellant submits that the fact that the victims in the case at bar were HIV positive constitutes an aggravating factor because Messrs. McGinn and Jewitt were psychologically more vulnerable by reason of their conditions. The Intervenor submits that to permit the fact the victims were HIV positive to be accepted as mitigating factors on sentence, would foster and reinforce the negative attitudes and beliefs which have traditionally characterized disabled persons as being somehow less than human.

10. The Appellant respectfully submits that this Honourable Court should not see Erin McGinn and Mark Jewitt in terms of their HIV status. Rather, this Court should view the victims of these crimes as persons first. Their status should not be obscured by the details of their medical problems. Their disabilities should not be used as justifications for departing from the sentence that would be imposed against Dr. Genereux had his patients not been HIV positive or otherwise suffering from disability.

    (b) Charter of Rights and Freedoms

11. The Intervenor submits that principles of sentencing should develop in accordance with Charter principles and values. In particular, the equality guarantees set out in Section 15 of the Charter have been introduced for the purpose of responding to negative stereotypes and stigmatization which affect marginalized persons in society, including disabled persons. As stated by the Supreme Court of Canada in Andrews v. Law Society of British Columbia (1989), 56 D.L.R. (4th) 1 at 14:

    "It is clear that the purpose of s. 15 is to ensure quality in the formulation and application of the law. The promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration."

12. The Intervenor respectfully submits that the sentencing principles to be applied in the case at bar must be consonant with the interests protected under s. 15 of the Charter. Accordingly, this Court should ensure the victims in this case receive the equal protection of the law. No mitigating distinction in sentencing should be assigned to the fact that Messrs. McGinn and Jewitt were HIV positive. Indeed, to deny persons with disabilities the same protections under the law that are available to persons without disabilities, would erode the values enshrined in Section 15 of the Code and would be damaging to the dignity, self-respect and security of the person of individuals with disabilities.

    (c) Assessing the Quality of the Lives of People with Disabilities

13. In addressing the issue of sentencing under the assisted suicide provisions of the Code, the Intervenor submits that it would be inappropriate for this Court to accept that it is possible for one person, including a physician, to assess another person's life and to determine whether that other person's life is of sufficient quality to warrant his and her continued existence. The Intervenor notes the self-evident fact that Canadian legal and constitutional traditions have always rejected the notion that people should be able to access the worth of someone else's life. The Intervenor stresses that no one, including a parent, guardian, spouse, relative, caregiver, educator or physician of a person with disabilities, has the capacity or the right to evaluate that person's quality of life. Arguments based on the quality of life necessarily assume that there is - 6 - an objective standard against which one is able to make comparisons. However, "the truth is that there is such a thing as a quality of life exists only as a subjective phenomenon. People can only rate themselves with any kind of meaning".

     

     

14. The Intervenor submits that the majority of non-disabled persons are not in a position to experience and/or relate to those with disabilities. Disability is often translated into a collective mythology that persons with disabilities, including persons who are HIV positive and/or persons living with AIDS, live tragic lives marked solely by deprivation and suffering. The Intervenor stresses that this is not the case. Certainly, disabled persons do not perceive themselves as different, deprived or less normal than that of other members of society merely simply because their physical bodies do not function the same way as the majority of non-disabled persons. Pain and suffering are but physical manifestations experienced by disabled persons which the non-disabled majority do not experience.

15. In addressing the issue of sentence in this case at bar, the Intervenor submits that the lives of the victims Erin McGinn and Mark Jewitt should be assessed just like the lives of any other persons in society. Their lives must be looked at in their entirety. Neither their conditions as HIV positive, nor their physical or psychological suffering, were determinative of the quality of their respective lives. Messrs. McGinn and Jewitt were simply HIV positive. It is conceded by all parties that both victims were in reasonably good physical health. Both were persons who had many things in life which gave them joy. It is submitted that nobody, let alone a physician, had the right to determine, or assist in determining, whether or not their lives were worthy of being lived. The Intervenor submits that this Court must avoid a sentencing decision which could be viewed as sanctioning a system whereby sentencing is put on a sliding scale depending upon the characteristics and/or disabilities of the victim.

    (d) Section 241(b) of the Criminal Code

16. There can be no dispute that the fundamental purpose of the legislation is aimed at the protection of persons who may be vulnerable to the influence of others in deciding whether, when and how to terminate their lives. As stated by Mr. Justice Sopinka in Rodriguez v. Attorney General of British Columbia (1993), 85 C.C.C. (3d) 15 at 69:

    "Section 241(b) has as its purpose the protection of the vulnerable we might be induced in moments of weakness to commit suicide. This purpose is grounded in the state interest in protecting life and reflects the policy of the state that human life should not be depreciated by allowing life to be taken. This policy finds expression not only in the provisions of our Criminal Code which prohibit murder and other violent acts against others notwithstanding the consent of the victim, but also in the policy against capital punishment and, until its repeal, attempted suicide. This is not only a policy of the state, however, but is part of our fundamental conception of the sanctity of human life. The Law Reform Commission expressed this philosophy appropriately in its Working Paper 28 "Euthanasia Assisting Suicide and Cessation of Treatment (1982) at p. 36:

    "Preservation of human life is acknowledged to be a fundamental value of our society. Historically our Criminal Law has changed very little on this point. Generally speaking, it sanctions the principles of the sanctity of human life. Over the years, law has come to temper the apparent absolutism of the principal to delineate its intrinsic limitations and to define its true dimensions.""

17. Later at pp. 78-79, Sopinka continued:

    "Regardless of one's personal views as to whether the distinctions drawn between withdrawal of treatment and palliative care on the one hand and assisted suicide on the other are practically compelling, the fact remains that these distinctions are maintained and can be persuasively defended. To the extent that there is a consensus, it is that human life must be respected and we must be careful not to undermine the institutions that protect it.

    This consensus finds legal expression in our legal system which prohibits capital punishment. This prohibition is supported in part on the basis that allowing the State to kill will cheapen the value of human life and thus the State will serve in a sense as a role model for individuals in society. The prohibition against assisted suicide serves a similar purpose. In upholding the respect for life, it may discourage those who consider that life is unbearable at a particular moment, or who perceive themselves to be a burden upon others from committing suicide. To permit a physician to lawfully participate in taking life would send a signal that there are circumstances in which the State approves of suicide." (Emphasis added.)

18. The Intervenor submits that this Honourable Court, in fashioning a fit and proper sentence in the case at bar, must recognize the fundamental values and purposes that Section 241(b) of the Criminal Code is designed to protect. A sentence which fails to reflect those fundamental principles would, in effect, fail to protect the vulnerable.

    (e) General Deterrence

19. The Intervenor submits that, in sentencing persons convicted for aiding suicide under Section 241(b) of the Criminal Code, the principle of general deterrence must be the overriding factor. In order to insure that Section 241(b) serves its purpose of protecting vulnerable persons in society, a sentencing court must send a message to other like-minded persons who may be inclined to assist persons to commit suicide, that such conduct will be met with lengthy custodial sentences. The Intervenor submits that such principles are all the more applicable in circumstances where the person found guilty of committing the offence was a medical doctor who stood in a position of trust over a vulnerable victim.

20. Notably, a deterrent sentence following a conviction for the assisted suicide of a disabled person, would also have the effect of providing reassurance to other disabled persons in society that the judicial system will be vigilant in ensuring that their lives will be protected and that their dignity and self-respect as human beings will be fostered. Put another way, the failure of the courts to impose deterrent sentence for such cases would send a message to those persons who may be vulnerable, including persons with disabilities, that their rights are not deserving of equal protection, and that their dignity and respect as human beings is secondary to persons without disabilities.

    (f) Denunciation

21. The Intervenor submits that a denunciatory sentence for a violation of Section 241(1)(b) is particularly called for in circumstances wherein the offender stood in a position of trust over his victims. In addition, a denunciatory sentence will be fit and proper in circumstances where the offender took advantage of the physical and/or psychological vulnerability of a disabled victim in carrying out the offence.

22. The Intervenor further submits that a denunciatory sentence is necessary in order to signal the Court's abiding respect for the intrinsic value of human life and to condemn as most serious criminal conduct which threatens both those values and life itself.

    PART IV - ORDER REQUESTED

23. The Intervenor requests that this Honourable Court fashion a sentence in the case at bar which recognizes the submissions respectively outlined above.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

February 26, 1999

LIST OF AUTHORITIES

R. v. McCullough (1995), 24 O.R. (3d) 239 (Ont. C.A., In Chambers)

Re Regina v. O'Connor et al, (1993), 83 C.C.C. (3d) 495 (B.C.C.A.)