Hugh Scher Swears Affidavit in Genereux Case

(8 January 1999) — CCD is seeking to intervene in the Genereux case. In its affidavit, CCD outlined its general position on the Genereux case to the court. CCD's position is summarized below:

People with disabilities are frequently victimized by prejudicial, paternalistic and stereotypical ideas about the quality of our existence. This is true for people who are HIV positive and/or are living with AIDS and for people who depend on doctors and care givers for survival and nurturing.

CCD is in a unique position to understand the vulnerability of being in these situations and the extent to which misguided attitudes of paternalism and pity rooted in the history of discrimination, can threaten the quality of our existence, the necessities for life and our very lives. Even where our lives are not directly threatened, people with disabilities are demeaned as to our dignity and self-respect by these quality of life attitudes and stereotypes.

CCD believes that vulnerable people, such as people who are HIV positive or are living with AIDS, require the full protection of the law, including the criminal law. This protection is threatened not only by the prevalence of stereotypical ideas about the quality of our lives, but also by the dire consequences that can result if those protections are not rigorously enforced. The right to equal protection of the law, regardless of physical or mental disability, is enshrined in section 15 of the Charter of Rights and Freedoms.

CCD is very concerned that the rights and interests of persons who are HIV positive and/or who are living with AIDS, and those of people with disabilities more generally, will be overlooked or minimized in the resolution of this case. CCD believes that Dr. Genereux's sentence and Notice of Appeal reflect a bias against the legitimate interests of vulnerable persons who are HIV positive and/or who are living with AIDS. His submissions on appeal, if accepted, threaten to damage the dignity and self-respect of such persons and their safety.

CCD is concerned that the gravity of Dr. Genereux's offenses may be diminished through a minimal sentence. CCD will argue that a deterrent sentence is necessary to fulfill the purpose of the assisted suicide provisions of s. 241(b) of the Criminal Code: to preserve life and protect vulnerable persons.

CCD believes it can make a fresh and helpful contribution to the determination of this appeal. Its participation will provide the court with a perspective that can best be presented by an organization that represents persons with disabilities. In particular, CCD can provide the court with argument and authorities which point out the difficulty and danger involved in any situation where a third party, including medical professionals who judge that he or she can make decisions about an ill or disabled person's quality of life.

CCD believes that, in the development and presentation of its position, it will advance arguments which will uniquely assist the Court.

John A. Campion and Scott Fenton of the firm of Fasken Campell Godfrey are counsel for CCD. CCD's motion will be heard on 29 January 1999.

Genereux Case Backgrounder

What follows is some background information from general press sources:

On 13 May 1998, Dr. Maurice Genereux was sentenced after pleading guilty to assisting a suicide. The case involved two of his patients, Aaron McGinn and Mark Jewitt. (Donn Downey, "AIDS doctor released on bail," The Globe and Mail, 15 May 1998.)

"Genereux, 51, pleaded guilty in December to prescribing Seconal to help two men commit suicide." ( "Ontario doctor gets 2 years less a day in assisted suicide case," Winnipeg Sun, 14 May 1998.)

Mr. McGinn died of an overdose. Mr. Jewitt survived the suicide attempt. (Henry Hess, "Doctor jailed 2 years for helping man kill himself," The Globe and Mail, 14 May 1998.)

Both men had been diagnosed as HIV positive and were depressed when they received the prescriptions from Dr. Genereux. (Hess, 1998.)

Dr. Genereux falsified Mr. McGinn's death certificate to make it appear that he had died from AIDS. (Hess, 1998)

A police investigation of Dr. Genereux was initiated when a psychiatrist involved with the treatment of Mr. McGinn reported his suspicions. (Hess, 1998.)

Dr. Genereux was arrested in June of 1996. (Henry Hess, Toronto MD loses license after assisting suicide, The Globe and Mail, 12 March 1998.)

In May of 1998, Dr. Genereux was sentenced to two years less a day and to three years probation for the assisted suicide. (Hess, May 1998.)

The sentence means that Dr. Genereux will serve his time in the provincial reformatory system rather than the federal penitentiary system. (Hess, May 1998)

Dr. Genereux would be eligible for parole after one third of his sentence is served. (Hess, May 1998.)

The maximum sentence for assisted suicide is fourteen years. (Hess, May 1998)

Dr. Genereux is the first doctor in North America to be convicted of assisting a suicide. (Hess, May 1998.)

Mr. Jewitt launched civil proceedings against Dr. Genereux for negligence, breach of contract and breach of fiduciary duty. (Hess, May 1998.)

Dr. Genereux's license to practice medicine has been revoked. (Hess, May 1998.)

When he committed the offenses, Dr. Genereux was practicing medicine under the following restrictions: that he receive psychotherapy and that he not be alone with patients during examinations. (Hess, May 1998.)

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