Rodriguez Case Factum

Court File No. 23476

IN THE SUPREME COURT OF CANADA

(On Appeal from the Court of Appeal for British Columbia)

BETWEEN:

SUE RODRIGUEZ

Appellant

AND:

ATTORNEY GENERAL OF BRITISH COLUMBIA and

ATTORNEY GENERAL OF CANADA

Respondents

FACTUM OF THE INTERVENOR, COPOH

PART 1 - STATEMENT OF FACTS

A. INTRODUCTION

1. The Coalition of Provincial Organizations of the Handicapped ("COPOH") intervenes in this appeal pursuant to an Order made by Mr. Justice Major on May 13, 1993.

2. COPOH is a national, not-for-profit, umbrella organization which represents people with a variety of disabilities. COPOH consists of 9 provincial affiliates which in turn represent approximately 163 local organizations. COPOH is accountable to a membership of approximately 75,000 individuals with disabilities. Its mandate is to create a voice for disabled Canadians and to promote the full participation and equal opportunity of people with disabilities in Canada.

Affidavit of Francine Arsenault, sworn May 10, 1993, paragraphs 3 - 9.

3. COPOH intervenes in this appeal for the purpose of supporting the autonomy and self-determination of persons who, because of physical disabilities, are unable to commit suicide without some assistance. At the same time, COPOH wishes to ensure that procedural safeguards are in place to ensure that assisted suicides by those persons are in fact as a result of informed, mentally competent decision-making, free from coercion or undue influence.

4. For the purpose of this intervention, COPOH accepts as accurate the facts as stated in the appellant's factum.

B. THE SITUATION OF PERSONS WITH DISABILITIES

5. Both historically and to the present day the lives and freedom of persons with disabilities have been threatened and, in some cases, eliminated by the insensitivity, ignorance and hostility of those who believe that the lives of disabled people are somehow of less value or quality than those of other people.

Affidavit of Francine Arsenault, paragraphs 28 - 41.

6. These kinds of attitudes, in their most extreme form, resulted in programs in Nazi Germany directed towards the sterilization and mass murders of hundreds of thousands of persons with disabilities. Under Nazi ideology, it was seen as important for the better public good that precious resources not be wasted on unworthy lives. Programs to kill people with disabilities were described as "the destruction of life devoid of value", "the destruction of useless eaters" and "help for the dying".

Affidavit of Francine Arsenault, paragraph 31.

The Nazi Doctor, Robert Jay Lifton at 2-27, 48-9, 62-66, 70-1, 98-101, 134-5, 142, Brief of Authorities, Tab 22.

From Genesis to Genocide, Stephen Chorover, at 96-103, Brief of Authorities, Tab 20.

Murderous Science, Benno Muller-Hill, at 62-4, Brief of Authorities, Tab 23.

"Sterilization and Euthanasia" in A Mosaic of Pain, Robert Jay Lifton, at 222-228, Brief of Authorities, Tab 21.

7. In today's society, prejudiced, paternalistic and stereotypical ideas about the lives of disabled persons continue to affect their freedom and independence. Family members often take choices away from persons with disabilities and disregard their autonomy for reasons which they consider to be altruistic, but which in fact are paternalistic. In some circumstances, these attitudes can, and do, result in the precipitous deaths of persons with disabilities at times other than of their choosing. For example:

a. A father in Winnipeg who learned that he was dying of cancer shot not only himself but his adult quadriplegic son who lived with him. Press reports indicated public sentiment sympathetic to the father's decision. Disability advocates queried why nobody was questioning whether the son actually wanted to die and why killing someone because of his disability was being considered as something less than murder.

Affidavit of Francine Arsenault, paragraphs 32 and 33, Exhibits E and F.

b. A Toronto hospital disregarded the instructions about resuscitation which a 30 year old woman with disabilities had given to an advocate and obtained instead her parent's authorization for a DNR (Do Not Resuscitate) Order. The parents had been told when she was born that she would live to be 30 or 35 and accepted, therefore, that her time had come. The daughter was aware of the DNR order and was terrified but was unable because of her condition to voice her objections.

Affidavit of Francine Arsenault, paragraph 32.

c. The parents of a multiply handicapped child in B.C. refused their consent for simple surgery to repair a drainage shunt in his head because they felt he should simply be allowed to die with dignity. A provincial court judge, focusing on the deficits caused by the child's disability dismissed a court application to authorize the surgery. On appeal, a Supreme Court judge focused instead on what the child could do and how he enjoyed life, declined to make value judgments about the "quality" of his life and made an order that enabled life saving surgery to be performed.

Re S.D. (1983), 42 B.C.L.R. 153 (Prov. Ct.), Brief of Authorities, Tab 15.

Superintendent of Family and Child Services v. R.D. and S.D. (1983), 42 B.C.L.R. 173 (B.C.S.C.), Brief of Authorities, Tab 17.

Affidavit of Francine Arsenault, paragraph 34.

8. One of the problems frequently encountered by persons with disabilities is the attitude of many medical practitioners that persons with profound disabilities have no "quality o life", that such lives are not worth preserving, that they are a burden, and that medical resources ought not to be wasted on them. This often has the effect of putting pressure on persons with disabilities to give up on their lives. Because of these stereotypical and prejudicial attitudes, medical practitioners often give persons with disabilities a bleak and negative impression of their future and fail to describe the available options or choices. For example:

An Ontario Coroner's inquest investigated the deaths of 15 profoundly disabled children who died while residents of an institution, the medical director of which was the attending physician for all 15 children. The evidence at the inquest demonstrated that in some cases parents were involved in key decision making. In other cases parents testified that they had not been consulted and were completely unaware of some decisions made by medical staff such as no diagnostic testing for illnesses, no treatment of potentially treatable and life threatening illnesses such as pneumonia, do not resuscitate orders, and the administration of morphine in does well beyond standard recommended dosages. In one case, the jury found the "excessive use of morphine" to be a cause of death. In 12 cases the jury listed "possible morphine factor" as one of the causes of death. In most of the cases the jury included as the means of death "an inappropriately commenced palliative treatment process involving the administration of morphine sulphate for an illness that was deemed to be terminal without benefit of confirming diagnostic testing". The jury's recommendations for the avoidance of similar deaths in the future included that "standards of medical case must be adhered to consistently for all children regardless of their abilities" and that "no child should be discriminated against based on disability regarding medical treatment".

Affidavit of Francine Arsenault, paragraph 37 and Exhibit "H".

9. The following excerpts from an article by the Honourable Mr. Justice Sam Filer (speaking as a person with ALS rather than in his judicial capacity), and his wife Toni Silberman, are an eloquent description of his experiences and a good illustration of the kinds of medical attitudes often encountered by persons with disabilities.

"I believe that the disease is not that which afflicts me but the dis-ease with which the professionals regard A.L.S. and other progressive conditions. It has been our sense and. to some degree, our experience, that medical personnel evidence a degree of hesitancy in offering treatment to me, heroic or otherwise, leaving us with the feeling that we're a drain on the system, and have no right being selfish enough to want to live. They're right on both counts, but that's too bad. As long as I'm capable of making a contribution of any kind, I will be entitled to, and fully intend t take advantage of life". (at p. 10)

"I went into respiratory failure while in hospital in January 1989. The doctors would not allow Toni into my room because they, in their mercy, didn't want her to watch me die. We thank them for that. What we don't thank them for is their reluctance to proffer to her, except under extreme duress, alternatives to my death. Six attending physicians encircled her, offering assurances that it would be inhuman to not 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". (at p. 8)

Justice Filer's wife insisted on the ventilator. Now, four years later, Justice Filer continues to live a happy and full life, both personally and professionally.

Affidavit of Francine Arsenault, paragraphs 35 to 37

"Who's the Judge", R.T.S.O. Journal at 7-11, Brief of Authorities, Tab 19.

10. Financial constraints on our health care system are being discussed and implemented throughout Canada. These constraints will accentuate the problems with medical attitudes and lack of resources experienced by persons with disabilities which arise from negative stereotypes about the quality and value of their lives. For example:

a. In the United States, the Oregon Health Care Plan, which ranks medical conditions in the priority by which they will be funded, has just been approved. The plan will restrict the types of treatments which will be covered under medicare. The criteria on which the ranking is based include cost, social value and medical effectiveness, the first two of which will have a serious detrimental impact on the availability of treatment for persons with disabilities.

b. Recently experts in Canada have been advocating a similar system here. The negative implications of the system on persons with disabilities are significant.

c. The Alberta Chamber of Commerce called for the adoption of a ranking system, and suggested care could be provided for "perhaps pneumonia but not for Lou Gehrig's disease (ALS).

d. A major teaching hospital in Winnipeg 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.

Affidavit of Francine Arsenault, paragraphs 38-40.

11. The foregoing are examples of ways in which the lives of persons with disabilities can become devalued by the attitudes of others and how a lack of resources or problems in people's support systems can create feelings of terror, helplessness and despair. Thus, a disabled person's right to self-determination and the availability of options is profoundly affected by the way the person's disability is perceived by others in society. As such, the vulnerability of persons with disabilities must be acknowledged while at the same time recognizing the need to support their right to make independent decisions about their lives.

PART II - POINTS IN ISSUE

12. COPOH will address the following issues:

1. whether s. 241(b) of the Criminal Code violates s.15 of the

Charter;

1. if yes, whether it is justifiable under s. 1 of the Charter; and

(c) remedies

PART III - ARGUMENT

13. The following is a summary of the issues to be addressed by COPOH in this factum:

a. Section 241(b) of the Criminal Code has an adverse impact on persons who, because of disabilities, require some assistance in order to carry out their own suicide. Accordingly it is discriminatory and violates section 15 of the Charter;

b. Assisted suicide requires that the person who is assisted take the final and unequivocal step of killing themselves. Otherwise it isn't "suicide". The final step can only be taken by a competent person as an expression of free will. COPOH does not condone euthanasia, or the taking of one person' life by another, no matter what the motive;

c. COPOH will not make extensive submissions on the application of section 7 of the Charter but will urge the Court to decide this case under the narrower scope of section 15 rather than section 7;

d. While s. 241(b) is directed toward a valid government objective, it is overly broad and therefore cannot be justified under section 1 of the Charter;

e. Upon a finding that legislation has a discriminatory and therefore unconstitutional impact on a group of people, a systemic remedy is called for;

f. Given the vulnerability of persons with disabilities and the valid societal concerns around assisted suicides, procedural safeguards are not only appropriate, but called for;

g. An appropriate systemic remedy would be a constitutional exemption. so that s. 241(b) would not apply to persons who because of physical disability are unable to commit suicide unassisted, together with an order for procedural safeguards to ensure that assisted suicides are truly exercises of freewill by competent persons within the exempted class;

h. A final determination of the safeguards required should not be made at this time because of the need for governments and others to consider what types of safeguards should be imposed. COPOH will recommend a period of two years to allow for this;

i. COPOH will present a number of options, not meant to be exclusive, for safeguards which this Court might consider by way of guidance to the legislatures;

j. It would be appropriate in this case to grant an individual remedy to Sue Rodriguez under section 24 of the Charter;

k. Court applications to obtain orders for assisted suicide would not be an appropriate long term solution to the systemic problems. However, as an interim measure, such applications would be appropriate to ensure that the criteria upon which safeguards should be based are met;

l. This Court should remain seized of this issue during the period of time allowed for governments to act. At the end of the two year period, this Court should entertain further submissions on the appropriate safeguards to be imposed and would then be in a position to consider any legislative steps that might have been taken.

A. SECTION 15 OF THE CHARTER

14. This Court emphasized in Andrews that ensuring true equality will in some cases necessitate differential treatment and that the "accommodations of differences" is "the essence of true equality".

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 167-169, Brief of Authorities, Tab 2.

15. Further, Andrews establishes that the concept of discrimination under s. 15 of the Charter "will be of the same nature and in descriptive terms will fit the concept of discrimination under the Human Rights Acts".

Andrews v. Law Society of British Columbia, supra, at 176, Brief of Authorities, Tab 2.

16. It is well established in both human rights and Charter cases that policies or legislation which are neutral in their general application may nevertheless violate equality rights if they have a discriminatory impact on a particular individual or group. Thus, if the effect of the legislation is discriminatory, its innocent general purpose or intent will not remove it from the application of s. 15 of the Charter.

Ontario Human Rights Commission and O'Malley v. Simpson-Sears Ltd., [1985] 2 S.C.R. 536 at 546 to 551, Brief of Authorities, Tab 6

Action Travail des Femmes v. Canadian National Railway Company et. al, [1987] 1 S.C.R. 114 at 1134-1138, Brief of Authorities, Tab 1.

R. v. Big M. Drug Mart., [1985] 1 S.C.R. 295 at 337, Brief of Authorities, Tab 8.

Edwards Books and Art Ltd. v. R., [1986] 2. S.C.R. 713 at 758-759, Brief of Authorities, Tab 4.

17. The right to autonomy and self-determination is of fundamental importance to persons with disabilities. This Court recently ruled:

"It should not be forgotten that every patient has a right to bodily integrity Â…. Everyone has the right to decide what is to be done to one's own body. This includes the right to be free from medical treatment to which the individual does not consent. This concept of individual autonomy is fundamental to the common law".

Ciarlariello v. Keller, (S.C.C.) (April 22, 1993) unreported at 17-18, Brief of Authorities, Tab 3.

Fleming v. Reid (1991), 4 O.R. (3d) 74 (C.A.) at 85, Brief of Authorities, Tab 5.

R. v. Morgentaler, (No. 2) (1988), [1988] 1 S.C.R. 30, at 166-167, Brief of Authorities, Tab 10.

18. Section 241(b) of the Criminal Code makes it a criminal offence to assist a persons to commit suicide. It does not differentiate between the case of a person who is physically capable of committing suicide and one who is not. Since suicide is not a criminal offence in Canada, the effect of s. 241(b) for the vast majority of people who wish to commit suicide is that they will not have the option of choosing a method that would require the assistance of another person. For persons who because of disability are physically unable to kill themselves unassisted, the effect of s. 241(b) is quite different. For this group, the option of lawful suicide has been completely removed.

19. It is therefore submitted that s.241(b) of the Criminal Code has a disparate impact on persons who because of a physical disability are unable to commit suicide without assistance. Accordingly, it violates their right to equality under s. 15 of the Charter.

B. SECTION 7 OF THE CHARTER

20. COPOH takes no position on whether or not s. 241(b) of the Criminal Code violates s. 7 of the Charter. However, because of the uncertainty of the possible implications of a decision that s. 241(b) either violates or does not violate s. 7 COPOH respectfully urges this Court to decide this case only under s. 15. In this regard, COPOH notes:

a. A decision under s. 15 would be narrower in scope as it would permit assisted suicide only for those who cannot kill themselves. It would, therefore, also be easier to implement;

b. A s. 7 analysis could involve issues such as whether there is a "right to die" in the manner of one's choosing and some consideration of "quality of life", There is a greater danger of such concepts being extended to rights that could be exercised by next of kin and surrogate decision makers than would be the case under s. 15 analysis;

c. A s. 15 analysis would still provide a remedy to the appellant as she only requests the right to assistance in the event that she becomes so incapacitated that she cannot kill herself unassisted.

d. The speed with which the case has come before the Court had made it difficult to fully canvas the extremely complex issues at stake. The narrower application of a decision under s. 15 also narrows the issues under s. 1, and in particular, the interests which must be balanced.

C. SECTION 1 OF THE CHARTER

21. If this Court finds that s. 241(b) violates s. 15 of the Charter, it is submitted that it cannot be saved under s. 1 because it is overly broad and fails to satisfy the proportionally test necessary to characterize it as a reasonable limit.

22. To establish that a limit is justified under s.1, the respondents must satisfy the following requirements:

a. The objective of the measures taken which limit the Charter right or freedom must be of sufficient importance to justify overriding a constitutionally protected right or freedom, and in particular, the concerns at issue must be pressing and substantial in a free and democratic society;

b. The respondents also must satisfy a proportionally test by showing that the means chosen to achieve the objective are reasonable and demonstrably justifiable. The proportionally test consists of the following three components:

1. firstly, the measures adopted must be rationally connected to the objective and be carefully designed to achieve it; they cannot be arbitrary, unfair or based on irrational considerations;

1. secondly, the measures, even if rationally connected to the objective, should impair as little as possible the right or freedom in question;

1. thirdly, the effects of the measure must be proportional to the objective, that is, the most severe the effect of the measure on Charter rights, the more important the objective must be.

23. COPOH takes the position that the general concerns to which s. 241(b) is addressed are pressing and substantial. Section 241(b) is intended to protect vulnerable people who may be pressured or coerced into committing suicide. It also is aimed at preventing the claim that a death was an assisted suicide when, in fact, I was homicide.

24. The effect of s. 241(b) is overly broad because it prevents persons with disabilities who are physically unable to commit suicide from doing so under any circumstances. It does not differentiate between assisting a mentally competent person who is physically capable of committing suicide and one who is not physically capable. Neither suicide nor attempted suicide are criminal offences in Canada. By preventing a group of people from committing a lawful act, s. 241(b) exceeds its legitimate objectives, and therefore is overly broad.

25. It is submitted that the lack of prosecutions under s. 241(b) does not necessarily indicate that it is an effective deterrent. Rather, prosecution is arbitrary and influenced by individual, subjective attitudes. The negative stereotypes and attitudes which exist about the lack of value and quality inherent in the life of a person with a disability are particularly dangerous in this context because they tend to support the conclusion that a suicide was carried out in response to those factors rather than because of pressure, coercion or duress. Further, as was pointed out by the Law Reform Commission of Canada, the absence of legal proceedings in this area "may reflect some ambiguity in the thinking and conduct of those responsible for the administration of the criminal justice system". This ambiguity and the lack of prosecutions raises serious doubts about how well or carefully s. 241(b) is designed to meet its specific objectives. The fact that the section also impairs the rights of persons with disabilities in a manner beyond the scope of its objectives indicates that it is overly broad.

Law Reform Commission of Canada, Working Paper 28, Euthanasia, Aiding Suicide and Cessation of Treatment, 1982, at p. 20, Brief of Authorities, Tab 18.

26. According to the test set out in Oakes, the measures adopted to achieve a particular objective should impair Charter rights as little as possible. COPOH is mindful of the particular considerations which the courts must take into account when the legislation which is sought be upheld has as its objective the protection of vulnerable persons. COPOH concurs that safeguards are needed to protect persons with disabilities in this context. It views them as essential. Statutory and procedural safeguards can be designed which will strengthen protections against vulnerable people from being pressured or coerced into committing suicide, while still enabling mentally competent persons to exercise self-determination and achieve independence.

27. Examples of legislative and procedural safeguards are set out at paragraph 40 of this factum. While these suggestions for safeguards are not meant to be exhaustive, they do illustrate that the objective of protecting vulnerable people from being pressured or coerced into suicide can be achieved without limiting the rights of persons with disabilities to such a degree. Therefore, it is submitted that s. 241(b) is overly broad and that it does not met the minimal impairment component of the Oakes test, and cannot be saved under s. 1 of the Charter.

D. REMEDIES

i. Constitutional Exemption with Safeguards

28. Where a provision of a statute has been determined to be unconstitutional in its application to a group of persons, a systemic remedy is called for. Individuals ought not to be required to bring legal proceedings to claim individual remedies arising from the operation of a provision already determined to be discriminatory. As stated by Wilson, J. in Osborne:

"It is not, in my opinion, open to the Court to cure over-inclusiveness on a case by case basis leaving the legislation in its pristine over-inclusive form outstanding on the books."

Osborne v. Canada (Treasury Board) [1991] 2 S.C.R. 69 at 77, Brief of Authorities, Tab 7.

29. A constitutional exemption is an appropriate remedy with respect to a statute which is mentioned in its general application but unconstitutional in its application to a limited class of people.

R. v. Big M Drug Mart Ltd., supra, at 315, Brief of Authorities, Tab 8.

R. v. Seaboyer, [1991] 2 S.C.R. 577 at 629, Brief of Authorities, Tab 12.

Edwards Books and Art Ltd. v. R., supra, at 783-785, Brief of Authorities, Tab 4.

30. It is submitted that the appropriate systemic remedy in this case is a constitutional exemption which would render s. 241(b) of the Criminal Code inoperative in its application to persons who because of physical disability are unable to commit suicide completely unassisted. A constitutional exemption is a particularly apt remedy in this case because it would only remove a limited class of persons from the operation of the statute (thereby substantially upholding the law which Parliament enacted) and because the class of persons to be exempted is an identifiable group that can be determined by criteria external to the Charter.

R. v. Seaboyer, supra, at 628-629, Brief of Authorities, Tab 12.

31. The class of persons to be exempted from the assisted suicide prohibition is a narrow one. Under COPOH's proposal, any person who is physically capable of taking his own life could not obtain assistance to do so. Assisted suicide requires that the person who is assisted take the final and unequivocal step leading to death. Otherwise it isn't "suicide". The final step can only be taken by a competent person as an expression of free will and cannot be authorized by next of kin or surrogate decision makers. Furthermore, all persons (including those in the class to be exempted) would continue to be protected by other provision of the Criminal Code. Counselling any person to commit suicide would continue to be prohibited by s. 241(a), the consent of the victim would continue to be unavailable as a defence to homicide pursuant to s. 14, and steps taken to accelerate someone's death would continue to be prohibited by s. 226.

32. It is to be noted that the exempt class proposed by COPOH is not limited to individuals who are "terminally ill" as suggested by some of the other interveners and parties. Persons with disabilities may wish to commit suicide for reasons that run the gamut of human experience, just as is the case for able-bodied persons. It is grossly stereotypical to assume that a disabled person who wants to die is motivated by the disability itself. It is the physical incapacity that gives rise to the need for accommodation in the act of suicide. This is unrelated to whether a terminal illness is present (whatever "terminal" may mean).

33. Furthermore, there is no need to medicalize the act of suicide by stipulating that assistance must be provided by a doctor. While an individual may choose the assistance of a doctor, this should not be a requirement.

34. As stated in paragraph 23 above, COPOH accepts that s. 241(b) is directed toward the protection of vulnerable persons. The class to be exempted is as vulnerable as, if not more vulnerable than, those still subject to the legislation. For the reasons referred to in paragraphs 5-11 above, COPOH submits that it would not be appropriate to grant the constitutional exemption without procedural safeguards for the exempted class to ensure that decisions to commit suicide are truly competent and independent. Examples of the types of safeguards recommended by COPOH are set out below.

ii. Types of Procedural Safeguards

35. It would no doubt be of considerable assistance to governments and others if this Court gave some guidance on the types of procedural safeguards it would consider appropriate to protect the interests of the exempted group.

Re Manitoba Language Rights, [1985] 1 S.C.R. 721 at 766-69, Brief of Authorities, Tab 14.

R. v. Swain, [1991] 1 S.C.R. 933 at 1021-22, Brief of Authorities, Tab 13.

R. v. Brydges, [1990] 1 S.C.R. 190 at 217-18, Brief of Authorities, Tab 9.

36. It is submitted that safeguards should enhance rather than displace the decision made by a person who might require assistance to commit suicide. Substitute decision-making in this context would violate the principles of personal autonomy and freedom of choice.

37. Choice without the means of implementing that choice would be ephemeral. No one should consider themselves obliged to assist another to commit suicide. For there to be a realistic prospect of a volunteer coming forward, a formal assurance of legality should be provided beforehand.

38. A person who depends upon another for assistance in committing suicide can be assumed to be dependent upon others for many essential services. How these services are performed (or not performed) could profoundly influence a person's decision about living or dying. For this reason a person with a disability in such a position of extreme dependence is particularly vulnerable to external influence. Whether or not such people are entitled to all the services they require, COPOH submits they should know about each and every service to which they are entitled and be provided with the means of accessing them.

39. Most persons with severe disabilities are living far below the poverty line and would have no reasonable means of applying for a court order. Moreover, the delay, public notoriety and formality inherent in the judicial process represent undesirable deterrents. COPOH submits it is essential to find a systemic method of ensuring an authentic decision to seek an assisted suicide has been made, without the necessity of invoking judicial review in every case.

40. COPOH provides the following example of the safeguards it envisages:

a. An application from the person with the disability, documenting the nature of the person's disability and the accommodations required in order to commit suicide, should be filed with the Public Guardian or Trustee or comparable office holder in the person's province r residence;

b. An advocate who is at arm's length from government and free from any conflict of interest would be dispatched to meet with the person. Beyond providing information about the availability of essential services, the advocate would be mandated to act on the person's instructions to assist in exercising rights and accessing entitlements. At the request of the individual the advocate would withdraw. Such advocates will soon be available in Ontario pursuant to Bill 74, An Act Respecting the Provision of Advocacy Services to Vulnerable Persons which received royal assent on December 10, 1992.

The Advocacy Act, S.O. 1992, c.26, Brief of Authorities, Tab 24.

c. Following the initial visit the advocate should be mandated to report to the Public Guardian or Trustee about whether there is reason to doubt:

1. whether the person would in the foreseeable future require an accommodation in order to commit suicide;

1. the person's mental capacity to decide to commit suicide;

1. whether the person is acting independently of external pressure being exerted by others;

d. Following a one month period, during which the Public Guardian or Trustee could conduct further inquires an authorization would issue or reasons would be given from refusing an authorization; and

e. If an authorization is refused, the person could then make application to a court of competent jurisdiction.

iii. Postponement of Final Determination on Safeguards

41. While ordinarily when a provision is found to be unconstitutional, a remedy is immediately ordered, this Court has recognized that such a course of action may not always be appropriate. In such cases, this Court has ordered a postponement of its remedy. In addition, where compliance with the Charter has involved the imposition of additional duties, this court has granted time to conform to those new duties.

Re Manitoba Language Rights, [1985] 1 S.C.R. 721 at 767-768, Brief of Authorities, Tab 14.

R. v. Swain, [1991] 1 S.C.R.933 at 1021-1022, Brief of Authorities, Tab 13.

Schacter v. R., [1992] 2 S.C.R. 679 at 725, Brief of Authorities, Tab 16.

R. v. Brydges, [1990] 1 S.C.R. 190 at 217-218, Brief of Authorities, Tab 9.

42. The postponement of a final determination of procedural safeguards to be imposed is particularly appropriate in this case because:

a. This case, because of its nature, proceeded quickly through the Courts. There has not been sufficient time to reflect adequately on appropriate safeguards, particularly in view of the complexity of the issues;

b. While this Court could order procedural safeguards now, legislatures should be given an opportunity to consider and respond to the Court's determination of unconstitutionality;

c. The most ideal solutions may involve cooperation between different levels of governments. This would best be achieved through those governments themselves, at least in the first instance;

d. The safeguards to be ordered by the Court may have an impact on provinces whose Attorney-General are not as yet before the Court in this case;

e. A postponement would enable the Court to obtain the input of agencies apart from government. For example, the Ontario Law Reform Commission will be conducting a project in this area, possibly including a survey of persons with disabilities who would be most directly affected by changes in the legislation.

Affidavit of Francine Arsenault, paragraph 52, Exhibits M and N.

43. It is submitted that postponement o the determination of safeguards rather than a suspended order is the most appropriate resolution at this time. Due to the seriousness of the issue and the possibility that legislatures may not respond or be able to respond effectively, this Court should remain seized of this aspect of the case for a period of two years. At that point, governments may have acted so that further safeguards are not necessary. Failing that, the Court could order procedural safeguards after having the benefit of more informed submissions than are possible at this time.

iv. Interim or Transition Remedies

44. When time is required to establish permanent safeguards, there is precedent for making provision for interim individual relief over a transition period.

R. v. Swain, [1991] 1 S.C.R. 933 at 1021-1022, Brief of Authorities, Tab 13.

45. COPOH has no special knowledge about Sue Rodriguez's life beyond that which appears in the decisions of the courts below, in her factum, and n various media reports. Based on this information, it would appear Ms. Rodriguez is blessed with a loving and supportive family, the personal resources to meet her basic needs and unrestricted access to high quality medical care. She is represented by an advocate (her lawyer) who works at arm's length from the state, is acting upon her instructions and whose interests are in no way in conflict with hers. Media interviews have demonstrated her to be a thoughtful and highly competent individual, who has consistently requested control over her own body throughout the trying process of litigation which brings her before the Court. Finally, there does not appear to be anyone in a position of trust or authority (eg. family member, medical practitioner, etc.) who is exercising undue influence over her decision. On the contrary, Ms. Rodriguez states that she had no medical practitioner willing to assist her to end her life when the litigation was initiated. Moreover, she states she has no present intention of committing suicide. She states she is enjoying her life. She is attempting to have greater control over how it is lived and how it may end.

46. COPOH accepts that Sue Rodriguez has demonstrated an authentic wish for assistance in committing suicide, and that in her particular circumstances, the following safeguards have effectively been met:

a. she will in the foreseeable future require assistance should she choose to commit suicide;

b. there is no reason to doubt her mental competence;

c. she has been informed of her rights and entitlements by her lawyer and has the opportunity and means of exercising them;

d. she is acting independently and no one is exerting pressure on her to commit suicide;

e. more than a month ha passed since she launched this application and she has demonstrated a consistent resolve to be permitted the right to commit suicide with assistance, if she chooses to do so.

47. Similarly, other individuals who fall within the exempted class could, during the transition period, apply to a court of competent jurisdiction for individual remedies under s.24. In this regard, the court may wish to articulate criteria for use in this process based upon the safeguards which COPOH says have been met in the case of Sue Rodriguez.

PART IV - CONCLUSION AND ORDER REQUESTED

48. COPOH's awareness of the vulnerability of person's with disabilities around assisted suicide is apparent from the above submissions and the material which it has filed with this Court. The fact that COPOH nevertheless supports freedom of choice in these circumstances is a testament to the extent to which self-determination and autonomy are seen by COPOH and those it represents as essential components of true quality.

49. COPOH respectfully requests that this Court:

1. provide an individual remedy to the Sue Rodriguez as claimed in her factum;

1. declare that s. 241(b) of the Criminal Code is unconstitutional in its application to persons who because of physical disability are unable to commit suicide without assistance;

1. adjourn the determination of procedural safeguards for a period of two years;

1. provide guidelines to legislatures as to the types of safeguards that may be appropriate for the protection of those exempted from s. 241(b) of the Criminal Code;

1. order that during the two year transitional period persons within the exempted class who wish assistance to commit suicide may apply to a court of competent jurisdiction for an order so authorizing;

1. provide guidelines to courts as to the circumstances in which individual remedies should be granted during the next two years for persons within the class exempted class.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

_________________________

ANNE M. MOLLOY

_________________________

JANET L. BUDGELL

Of Counsel for the Intervener

Coalition of Provincial Organizations

(C.O.P.O.H.)