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4.1 The Canadian Social Climate

Canadians with disabilities have voiced concerns regarding the de-valuation of themselves as citizens who can fully participate in society. Not only are there ongoing barriers that prevent opportunities for education, employment, and other rights and protections guaranteed under the Canadian Charter, but some fear that their very lives are at stake. This is particularly apparent in concerns that arise in relation to the field of health care.

Orville Endicott, a Toronto lawyer and disability activist, asks if safeguards currently in place protect the interest of vulnerable persons?⁷ Although he specifically addresses concerns about the legalizing of euthanasia and physician-assisted suicide, he does so within an over-arching question of whether or not our society ought to permit doctors to act as agents of death in certain situations involving persons with disabilities. He sees this question posing two distinct problems for persons who are vulnerable because of disability or advancing age. These are:

1.	The threat of being killed, and
2.	The threat of losing one’s control over the most significant decision affecting one’s life that it is possible to make - the decision to bring it to an end before death occurs naturally.8

Endicott also makes mention of a related focus of debate, namely, whether there ought to be a separate category of homicide in Canada, often referred to as “compassionate homicide” or “mercy killing.” It is conceivable, states Endicott, that Parliament may, as was recommended in 1995 by the Special Senate Committee on Euthanasia and Assisted Suicide,⁹ adopt a separate category as an interim amendment to the Criminal Code, rather than moving directly to specific physician-assisted death legislation. At present the Criminal Code classifies murder as “first degree murder” if it is “planned and deliberate”, if the victim is a peace officer or prison employee “acting in the course of his duties”, or if the murder takes place while the accused person was “committing or attempting to commit” certain other serious offences. All other murder is second degree murder.¹⁰ Some have urged that anyone who kills another person with the intention of ending their pain and suffering should not be subject to the life sentence and minimum parole eligibility presently mandatory for those convicted of first and second degree murder.

Although the purpose of this paper is not to discuss at length either euthanasia, assisted suicide or changes in mandatory sentencing, they are mentioned here and in other sections as reference to the particular concerns of persons whose lives and liberties might be jeopardized if Canadians should decide that such practices be legalized. The ongoing and often heard debates on these issues are an ominous cloud that hangs, ever-threatening, over the heads of vulnerable people who live with the peril that a change in legislation could remove protection to their persons.

The Council of Canadians with Disabilities intervened in 1999 in the Ontario Court of Appeal case of R. v. Genereux.¹¹ Although this case involved a doctor pleading guilty to aiding and abetting suicide of someone deemed as having a “terminal” illness, CCD placed before the Courts a compelling argument of the situations of all persons with disabilities in Canada. This was posed as follows:

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.

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.12

Although the predominant social attitudes to persons with disabilities in Canada leave many disability rights activists with a sense of wariness and unease, there are positive steps being taken which could be beneficial for the well being of all Canadians. An exciting new development in Manitoba is an action recently undertaken by the Manitoba Law Reform Commission to prepare a report on laws dealing with the application of Do Not Resuscitate Orders. A body of five persons has been appointed to examine the issue for possible law reform, and the Commission is including the previous work of the Manitoba League of Persons with Disabilities, both as intervener in the Sawatzky v. Riverview Health Centre, and the research documents “Our Last Rights: Do Not Resuscitate (DNR) Orders and People with Disabilities” (R. Wiebe) and “Do Not Resuscitate Orders and the Law in Canada - Patients’ Rights” (S. Walsh) in their examination of the law.

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7	Orville R. Endicott. Legalizing Physician-Assisted Suicide: Can Safeguards Protect the Interests of Vulnerable Persons. Council of Canadians with Disabilities. 2000.
8	Ibid. 2.
9	Senate of Canada. Of Life and Death. Report of the Special Senate Committee on Euthanasia and Assisted Suicide, 1995.
10	Criminal Code of Canada, R.S.C. 1985, c. C-46, s.231.
11	R. v. Genereux (1999), 44 O.R. (3d) 339.
12	Factum of the Council of Canadians with Disabilities in R. v. Genereux. Particulars as above.

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