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The Auton Case: Application, Opposition, Order | The Many Varieties of Being Written Off


The Auton Case: The Intervener's Factum


The Nature of Autism
The Treatment of Autism
Section 15(1) of the Charter
Section 7 of the Charter

File No.: 29508




 (Appellants/Respondents on Cross-Appeal)


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)







The fundamental premise underlying section 15 of the Charter of Rights and Freedoms is that Canadians do not live in a society where disabled persons are obliged to accept passively the judgments and treatments imposed on them for what others perceive as their own good.  Canadian society is not supposed to assume that disabled persons cannot participate in or contribute to this society unless they undertake to become or to resemble those whom society does not regard as disabled.

Unfortunately, this assumption is present throughout these proceedings and in those in the Courts below. Ms Dawson’s intervention seeks to alert this Court to the dangers of perpetuating the assumptions made by the parties, the Courts and the other interveners, who have all presumed to engage in a process where decisions are to be made about the best interests of autistic Canadians. Yet not one Canadian autistic was either heard or consulted. Such an exercise is in fundamental contradiction to the principles underlying the Charter.

The judgments in the courts below, accepting the submissions of the two parties before them, present a unified view of untreated autistic individuals, who are described as hopeless, unable to communicate and to learn, and expensively doomed to isolation and institutionalization.

Autistic individuals have in consequence been judged by the courts below to require “medically necessary” early intensive behaviour intervention (“IBI”), based on the principles of Applied Behaviour Analysis (“ABA”). Under this treatment, success is considered to be achieved when the individuals lose their autistic nature and traits, and become, or appear to become, indistinguishable from non-autistic Canadians.

The Charter does not exist to promote these stereotypes and prejudices by allowing equality, dignity, and participation only to those who succeed in a “medically necessary” treatment to eradicate their differences and render them indistinguishable from Canadians judged to be “normal”.

The Charter exists to prevent the life, liberty, and security of individuals with differences from being diminished or devalued through discrimination. The Charter does not exist to promote the view that only “normal” Canadians, or Canadians striving to be “normal”, can enjoy life, health, liberty, security, and dignity.

The Charter exists to protect Canadians with differences from having their worth, dignity, and commensurate treatment being finally determined in their absence, and on the basis of prejudicial and stereotyped descriptions of themselves adopted for whatever reason by parties with competing agendas and interests.

These proceedings reveal a large discrepancy between fundamental Canadian values expressed in the Charter, and the treatment and portrayal of autistic individuals.

The proceedings to this point have been so gravely flawed in the gross stereotyping of and the denial of the basic humanity of autistic individuals that the constitutional questions at issue can only with great caution, if they can at all, be addressed without risking great and permanent harm to those whose well-being is supposedly at issue.



While Ms Dawson has a specific diagnosis of autism, and was similarly situated to some of the infant Respondents as a child, she agrees, for the purpose of this intervention, to use the word autism to describe all those with autism spectrum diagnoses.

Contrary to the portrayal of autism presented by the parties, Ms Dawson is intelligent and communicates, she speaks and writes. She lives independently and has worked as a postal worker for many years. She is particularly well qualified to comment on some of the basic premises accepted and found as facts in the courts below.

Ms Dawson rejects the accounts of the facts provided by both the Respondents and the Appellants. While an inventory of the problems with these accounts would exceed the constraints of this intervention, it is central for this Court to appreciate that the premise on which both accounts are based must be rejected.  It is also essential for this court to keep in mind that no autistic individual testified in the proceedings in the courts below.

The basic premise of the parties is that without “effective treatment”, autistics are doomed. Only evidence supporting this premise was provided, this premise apparently being suitable to the needs of both parties. For example:
“It is beyond dispute that autism is a devastating disability both for the children, who are unable to communicate with others and relate to their surroundings, and for their families. Without effective early intervention, the majority of autistic children require extensive and indefinite societal support.”

Reasons for Judgment of Allan J., March 31, 1999, at para 8, Appellants’ Record, p. 11
“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.”

Reasons for Judgment of Allan J., July 26, 2000, at para 4, Appellants’ Record, p. 67
“Without effective treatment, autism is a lifelong affliction that results in the placement of over 90% of untreated children in group homes or other residential facilities. Only one of 64 children will show any improvement without treatment.”

Reasons for Judgment of Allan J., July 26, 2000, at para 11, Appellants’ Record, p. 70 [Repeated with emphasis added in the Reasons for Judgment of Saunders J.A., Appellant’s Record, p. 173]

There are fundamental questions and considerations which, regardless of their essential nature, appear to have been of no interest in proceedings where autism was accepted by all non-autistic participants to be, if untreated, very nearly a death sentence.  This court should not accept factual findings made in such circumstances.



Ms Dawson will limit her intervention to the constitutional issues stated by the Chief Justice and will not address the additional issues proposed by the parties:

Do the definitions of “benefits” and “health care practitioners” in s. 1 of the Medicare Protection Act, R.S.B.C. 1996, c. 286, and ss. 17-29 of the Medical and Health Care Services Regulation, B.C. Reg. 426/97, infringe s. 15(1) of the Canadian Charter of Rights and Freedoms by failing to include services for autistic children based on applied behavioural analysis?

If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society by s. 1 of the Canadian Charter of Rights and Freedoms?

Do the definitions of “benefits” and “health care practitioners” in s.1 of the Medicare Protection Act, R.S.B.C. 1996, c. 286 and ss. 17-29 of the Medical and Health Care Services Regulation, B.C. Reg. 426/97, infringe s. 7 of the Canadian Charter of Rights and Freedoms by failing to include services for autistic children based on applied behavioural analysis?

If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s.1 of the Canadian Charter of Rights and Freedoms?



The Nature of Autism

The nature of autism is unknown. No one knows what autism is. Autism is diagnosed behaviourally, but the organizing idea(s) or central difference(s) resulting in these behaviours is unknown.

Given the limited evidence before her, it is not surprising that the trial judge would equate the nature of autism with diseases which are known to be fatal if not treated:
“As one example, the Crown submits that if an autistic child gets cancer, he or she will receive treatment for cancer. That justification is misguided as well as unfortunate. It ignores the fact that autism is a medical disability just as cancer is and that both require treatment. As the petitioners point out, autism is a disability so severe and comprehensive that it affects all aspects of their lives. Their core medical need is for treatment that will permit them to break out of their isolation. They require treatment for that condition, as well as any other conditions that they may be unfortunate enough to incur additionally.” (emphasis is ours)

Reasons for Judgment of Allan J., July 26, 2000, at para 134, Appellants’ Record, at p. 119

See also Reasons for Judgment of Allan J., July 26, 2000, at para 67 and 136, Appellants’ Record, at p. 94 and 120

It must be underlined that autism is not a disease. Untreated autistics do not deteriorate and die. Mistreated autistics often deteriorate. This should not be assumed to be a feature of autism. Mistreated non-autistics, subject to prejudicial low expectations and poor care, also deteriorate.

The trial judge also equated the treatment of autism with the treatment of mental illness. Autism is not a mental illness. Autistics have suffered terribly for being treated inappropriately and unethically as though mentally ill. It is well known that autistics have, in the past and present, become trapped in the mental health system. Subject to unethical medication, restraint, and incarceration, they have been destroyed, often despite functioning competently prior to being mistreated.

Reasons for Judgment of Allan J., July 26, 2000, at para 137, Appellants’ Record, at p. 120

Autistic people, like non-autistics, sometimes develop serious physical diseases, and sometimes suffer from mental illness. No evidence was sought from untreated autistics in these situations who could have explained to the court the distinction between a physical or mental illness for which “medically necessary” treatment must be sought, and autism, a difference which, being integral to the person, must be respected. No evidence was sought from autistic persons for any purpose.

This is perhaps not surprising given the unchallenged position of the Respondents that untreated autistics cannot communicate, which is reflected in their Factum, at para 63
“Without treatment, they are deprived of the chance to learn how to communicate with the world and learn from it, and of the means to avoid injuries, thus engaging both their psychological and physical integrity.”
Having reviewed the record materials, Ms Dawson is unable to find any reliable source for the statement that untreated autistics “cannot” communicate.

No allowance is made in the Courts below that while communication may not develop on schedule, and that it may be difficult, it will in fact develop, and in many cases, develop completely.

The autism spectrum contains a diagnostic category, Asperger syndrome, which requires, for its diagnosis, that the child develop speech on schedule. In these proceedings, even these children are assumed to be unable to communicate without treatment. This alone should cause this Court to question the reliability of any of the factual findings of the courts below or claims of the parties to these proceedings.

In addition, speech is not synonymous with either “language” or “communication”. Were that true, the petitioners in Eldridge would have been described as being unable to communicate. With communication, as with learning and intelligence, the parties in these proceedings agreed, and the Courts accepted, that these abilities either must be typical, that is “normal” in form, or they are judged not to exist at all in autistics.

It is true that “untreated” autistic communication, learning, and intelligence, as well as order and progress of development, fail to be typical. It is false to conclude from this, or to assume that autistic communication, learning, intelligence, and developmental progress are either non-existent, or inferior and worthless.

No allowance is made by either the parties, or the Courts below that “untreated” autistic traits, which result in atypical learning and intelligence, have great benefit both to autistics and to society. The inherent strengths of autistics, based on measurable differences in cognition (perception, attention, memory; and kind, not level, of intelligence) are unavailable to non-autistics, and according to the principles of ABA as well as its practice, are unavailable to treated autistics.

Autistic characteristics, which may well in fact be strengths, are considered “wrong” in these proceedings, as evidenced by descriptions by the Respondents and in the judgments below, in which autistic ways of playing, moving, and attending are described as defective and are slated to be corrected or extinguished:
“In a group of peers, a child with autism is likely to avoid contact and remain isolated from the group. Instead of playing imaginatively with toys, autistic children often engage in repetitive behaviour such as arranging objects into neat rows or flapping their hands in front of their eyes.”

Reasons for Judgment of Allan J., July 26, 2000, at para 10, Appellants’ Record, at p. 70

Untreated autistic individuals have contributed greatly to society through their autistic traits. In contrast to the doom painted by the parties for all untreated autistics, autistics are in the workforce, they are in academe, they are parents (often of autistic children), they are artists, architects, engineers, physicists, musicians, and writers. Many have, through the brilliance, innovation, impartiality, persistence, and courage with which they are gifted, disproportionately contributed to the progress and enlightenment of society.

It would be an error with historical resonances (for example, assuming that the woman or the black person who is intelligent is the rare exception) to assume that untreated autistics who achieve autonomy and much else are just freakish oddities.

If the prejudices and assumptions present in the conclusions of the courts below are allowed to stand, untreated autistics who do seek to participate in and contribute to Canadian society will continue to face intolerance and discrimination.


The Treatment of Autism

Contesting the presumed effectiveness of ABA-based early IBI may be futile at this point in the proceedings. The position of the two parties was so similar on this issue that the trial judge used the testimony of the government’s main witness to support the parents’ position.

Reasons for Judgment Allan J., July 26, 2000, at para 52, Appellants’ Record, at p. 89

None of the evidence about the efficacy or medical necessity of ABA dealt with the serious ethical issues that arise when powerful behaviour therapies are applied to clients who can’t consent. Since scientists and societies have historically made significant errors in deciding which behaviours (left-handedness, homosexuality) should be treated, and in which kinds of people they deem acceptable and valuable, behaviour therapies involving non-consenting clients require an ethical review process in order to decide which behaviours should be treated. This process should involve affected parties from the community, as well as experts in science, ethics, and the law.

No such ethical review process has happened in the development and practice of ABA as an autism treatment. In the absence of decisions about what behaviours can ethically be “treated”, the goal of the indistinguishable child has been and remains unquestioned. All autistics in ABA programs are judged as to their progress towards achieving this goal. Autistics have had no part in any research design or treatment decisions in ABA programs. All such roles have been taken by parents, governments and service providers.

Since the central difference(s) in autism remain unknown, nobody has any idea, nor has studied, which behaviours are adaptive or maladaptive to that difference. That many “normal” behaviours may be painful, frightening, or useless to an autistic (i.e. eye contact) has not been considered. This Court is being asked to endorse a particular form of treatment, or at least approach to treatment, without any evidence as to the extent to which “odd” or “inappropriate” autistic behaviours are entangled with exceptional autistic abilities.

Nobody has studied the difference between an ABA best outcome (the indistinguishable child) and someone like Ms Dawson, who remains obviously autistic but has a life encompassing learning, intelligence, achievement, innovation, and autonomy, however atypically. This Court, and the courts below, were completely uninformed as to how “successful” untreated autistics, those who develop atypically and perhaps because of this contribute greatly to society, achieve this result. Little interest has been demonstrated in autistics doing well in society as autistics.


Section 15(1) of the Charter

Equality, dignity, and the worth of a person must not be contingent on that person’s ability to be or act like persons judged to be typical. Equal treatment requires society to respect, accommodate and embrace differences. To fail to do so is a violation of the principles of equality.  As this Court has recently noted in Vriend:
“It is easy to say that everyone who is just like “us” is entitled to equality. Everyone finds it more difficult to say that those who are "different" from us in some way should have the same equality rights that we enjoy. Yet so soon as we say any enumerated or analogous group is less deserving and unworthy of equal protection and benefit of the law all minorities and all of Canadian society are demeaned. It is so deceptively simple and so devastatingly injurious to say that those who are handicapped or of a different race, or religion, or colour or sexual orientation are less worthy. Yet, if any enumerated or analogous group is denied the equality provided by s. 15 then the equality of every other minority group is threatened. That equality is guaranteed by our constitution. If equality rights for minorities had been recognized, the all too frequent tragedies of history might have been avoided. It can never be forgotten that discrimination is the antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.” (Emphasis added)
Vriend v. Alberta, [1998] 1 S.C.R. 493, at para 69
This is all the more so in the case of a disability.  This Court dealt with this issue in Eaton, when it 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.”

Eaton v. Brandt County Board of Education, [1997] 1 S.C.R. 241, at para 67
Ms. Dawson submits that not only do these proceedings attribute untrue characteristics to a whole category of disabled persons, being autistic Canadians, children and adult, but the treatment sought to be imposed is fundamentally inconsistent with the notion of respect for the individual and the duty to accommodate. In fact, the idea that society should accommodate the special needs and characteristics of autistic individuals is entirely absent.

This Court is being asked to endorse a treatment of a disability which 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”.

It is difficult to imagine this being tolerated in any setting. Canadian society does not consider, for example, that it is medically necessary surgically to alter the appearance of children with Down syndrome such that their appearance becomes indistinguishable from that of children who do not have Down syndrome. In fact, Canadian society would probably strongly disapprove of such a practice.

However, parents may be distressed because the appearance of their Down syndrome children is stigmatizing to their children. Parents may be genuinely distressed because they cannot have a child who is as much as possible indistinguishable from typical children. If they succeeded in having surgery for their children funded as “medically necessary” treatment, the impact would be felt by all those with Down syndrome, by all those with differences labelled as disabilities, and by all of society.

While not in any way wishing to diminish the emotions experienced by some parents of autistic children, or their desire to have their children become “normal”, Ms Dawson feels that the Courts below were more impressed with the need to provide relief to the parents, rather than to the children. For example, the trial judge noted:
“The adult petitioners (and the families of autistic children ‘behind the scenes’ in this litigation) are remarkable individuals. As parents of autistic children, they have endured emotional and financial hardships and grief unknown to most people. They have exerted tremendous energy educating themselves and others, including physicians, with respect to the nature of the autistic disorder and the efficacy of Early IBI.”

Reasons for Judgment of Allan J, February 6, 2001, at para 49, Appellants’ Record, at p. 153

No similar comments are made about the children themselves, or the anguish that they may be experiencing by being forced to subjugate their individuality to a pre-conceived notion of normal or typical behaviour or being constantly reminded by society that an autistic individual’s behaviour, interests and concerns are unacceptable to the majority.

This Court recognized in Eaton, and in Eve, that while a parent’s decision of what was in the best interests of the child was entitled to respect, it was not determinative. Furthermore, this Court cautioned in Eve against being overwhelmed by the distress or the motives and love of the parents, stating:
“One may sympathize with Mrs. E. To use Heilbron J.’s phrase, it is easy to understand the natural feelings of a parent's heart. But the parens patriae jurisdiction cannot be used for her benefit. Its exercise is confined to doing what is necessary for the benefit and protection of persons under disability like Eve. And a court, as I previously mentioned, must exercise great caution to avoid being misled by this all too human mixture of emotions and motives.”

E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388, at p. 429

Implicit in these proceedings is the notion that autistics are inhuman, and must be therefore made human. It is only then that their rights will have been respected. This premise is completely inconsistent with Charter principles.

The Appellants in their Factum twice refer to the intractability of autism to treatment.
Appellants’ Factum, at paras 69, 76
Ms. Dawson, who agrees with this idea, interprets it differently from both the Appellants and the Respondents. Autism is intractable the way homosexuality is. As homosexuality is integral to the homosexual, autism is integral to the autistic.

Those seeking equality rights in Vriend were homosexuals, not parents of children at risk for non-heterosexual development. The homosexuals in Vriend were not required to undergo ABA-based treatment so as to become, or at least to resemble, the heterosexuals whose equality rights were protected.

Like autism, homosexuality has been treated by an ABA-based early IBI. This treatment had the stated goal of preventing or curing homosexuality. Dr Lovaas was the principal investigator in this project, which for many years was concurrent with his work in early IBI for the other intractable pathology, autism. Both projects had the goal of an “indistinguishable” child. No tolerance or accommodation was recommended for the intractability of homosexuality. He stated:
“For example, it has been suggested 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.”

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

Dr Lovaas’ position on homosexuality may have reflected the majority view in previous times, just as proponents of extinguishing autistic traits may represent the majority view today.  The Charter requires that the worth and treatment of minority disadvantaged groups be independent of prevailing popular views.

As the Ontario Court of Appeal has recently noted in Hislop:
“The Charter is anti-majoritarian. It cannot be that the entitlement to the benefits of s.15(1) is subject to the majority views of the electorate or that it is somehow dependent on evolving social and political views.

v. A.G. Canada, [2003] O.J. no. 5212, at para 78
Not only is the notion that autistics are inhuman implicit in these proceedings, it is explicit in the writings of Dr. Lovaas, the person whose research is the basis for the claim that ABA is a scientifically validated treatment. In 1993 he wrote about autistic persons:
“Instead, the fascinating part for me was to observe persons with eyes and ears, teeth and toenails, walking around yet presenting few of the behaviors 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.”

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

Even were such a treatment “effective” in changing observed behaviour in childhood, the premise is completely unacceptable in Canadian Society.

Cost-benefit analyses are used to promote the idea that funding IBI results in great monetary savings. The Respondents commissioned and provided their own, as well as supplying one published in the science. The Intervener Autism Society Canada has included many cost-benefit analyses in its Application. All such analyses are premised on the “facts” that not one untreated autistic ever contributes in any way to society; and that untreated autistics are a catastrophic burden on society.

Factum of the Respondents, at p. 9

Ms Dawson submits that groups who are excluded from the entire public discourse about themselves, and are in their absence denigrated and infantilized by those deemed qualified to decide their future, have the worst and most expensive outcomes. This can be seen in the history of aboriginal people in Canada. It would be reprehensible to perform a statistical analysis to prove that aboriginal people are a burden on society because they are aboriginal, then to propose that society would profit greatly if only aboriginal people became less aboriginal or not aboriginal at all.

The inability of autistics to communicate has been stressed in the judgments below, and by the Respondents. The conclusion reached by the parties and by the courts below is that because of this inability to communicate, all autistic individuals are necessarily unable to participate in society or in decisions about themselves, and to benefit from services.

This position is directly contrary to the decision of this Court in Eldridge, to which frequent reference was made in the courts below. The Appellants in Eldridge were deaf individuals seeking the funding of interpreters such that they may access health care. The Appellants were not required to seek “medically necessary” treatment to either make them non-deaf, or to train them to act like non-deaf persons. It was not said that because they are deaf, if they do not strive to become non-deaf, they are doomed and will be institutionalized. It was not said that because their communication fails to be typical, they do not communicate at all and cannot participate in society.
Eldridge v. A.G. B.C., [1997] 3 S.C.R. 624
Ms Dawson has experienced first hand that the inability to participate and benefit from government services applies equally in Canadian society to untreated autistics who have fully-developed speech, including those who communicate extremely well, and are even called articulate.

The inability to participate and to benefit from services results from the stereotypes and prejudices evident in the judgments below, and in the Factums of the parties, and in the applications of many of the Interveners.

Many organizations, including those present in these proceedings, claim to be fighting for the participation of autistics. In fact, they themselves consistently deny the participation of autistics, regardless of the autistic’s abilities, in their own organizations. It is striking that not one of the Intervener groups indicated in their Applications to intervene that actual autistic individuals were represented on their boards or on their staff. Therefore, services sought for autistics reflect the needs and agendas of parents and other non-autistics. The services are those which attempt to teach autistics to be “normal” such that they can participate in society by passing as non-autistic.

Ms Dawson submits that if the Respondents’ position is adopted, autistic people will not have the same equality rights enjoyed by non-autistics. Autistic people will be seen as unworthy and undeserving of equal protection and benefit of the law. Their equality rights will amount to an obligation to be or to act much less autistic or not autistic at all.

Further, accepting the Respondents’ position will have the direct effect of demeaning all autistic individuals and rewarding those who have chosen to demean autistics in order to fulfill their goals.

The Appellants’ position is equally untenable. They too have demeaned and excluded autistics as necessary to achieve the outcome they desire. Like the other governments represented in theses proceedings, they have failed utterly to provide autistics with equal protection and benefit of the law. They have contributed greatly to the stereotypical and prejudiced views of autism common in society and have based their decisions on these grossly inaccurate views.

As a result, autistics are entirely at the mercy of circumstance, neither being accommodated in even inexpensive, rudimentary ways; nor being recognized as in Canadian society as human beings with human rights.


Section 7 of the Charter

The Respondents and the judgments below state that the alternative to “effective” treatment of autism is a life of isolation, dependency, hopelessness and institutionalization for the autistic. The doom awaiting all untreated autistics is repeated and emphasized.

Central to this view is the Respondents’ portrayal of autism as an appalling disorder, and as incompatible with communication, learning, intelligence, autonomy, achievement, integrity, growth, participation, dignity, health, life, liberty, and security.

The Respondents provide one alternative, a “medically necessary” treatment replacing useless autistic traits with non-autistic behaviours until the autistic individual appears “normal”. They have stressed the grim future that awaits all autistics who are deprived of this treatment.

Upholding the Respondents’ position carries the risk that for any autistic child, the deprivation of “medically necessary” treatment will be seen as the mistreatment or neglect of that child. The Respondents’ contention that this treatment will remain optional is at least unrealistic, if not irresponsible. This would somehow make autism different from other catastrophic illnesses, to which autism has been compared in the judgments below, where depriving a child of treatment may result in the apprehension of that child.

All provinces funding preschool ABA have been deluged with demands for ABA from ages 6 onwards. The Appellants report demands for ABA for autistic children up to age 19, and it is simply a matter of time before ABA is equally demanded for adults of all ages, or as a cradle to grave service.
Appellants’ Factum, at para 114
The security, liberty, and possibilities of autonomous untreated autistic adults can be seen as diminished and at risk if the Respondents’ position is upheld. Autistic traits will be seen as wrong or “sick” and in need of treatment. Untreated autistics failing to seek, resisting, or refusing treatment would find themselves at risk of losing employment, benefits, and/or their freedom.

Autistic individuals do not belong in an institution. More so than non-autistics, autistics require freedom and privacy in order to survive, progress and learn. Autistics can and do communicate. Autistics can and do learn. But the public and physicians have been educated to deny these possibilities in untreated autistics, by the Respondents and many organizations with “autism” in their names.

Ms Dawson is familiar with the precarious state of the life, liberty, and security of autistics in Canadian society. Unlike deaf people, for instance, autistics cannot identify themselves as autistic in most situations without variously putting their health, security, liberty, autonomy, and employment at risk. Autistics learn not to seek emergency care, since if they act autistic, even while identifying themselves as such, they are at risk of being “institutionalized”, that is, committed against their will.

Autistics Canadians must face a barrage of intolerance. They may have repeatedly to explain that they are not dangerous to themselves or others. They may have to explain that autistic people talk. They often are treated with suspicion by health care professionals who “know” that autism is incompatible with intelligence. Ms Dawson is lucky to have found a sympathetic health care professional for her basic medical needs. Most autistics will not be so lucky, and will face physicians “educated” by the Respondents or their equivalents.

The Respondents stress the danger to autistics of self-injury. They present this information as though autistics hurt themselves just because they are autistic. This approach must strongly be objected to. Autistics who injure themselves, or have in the past injured themselves, could have explained why and under what conditions they act this way.

Ms Dawson submits that the Respondent’s section 7 arguments must be rejected since they have no basis in any testimony or representation of the individuals whose life, liberty, and security are at issue. Such testimony or representation, being easily available, seems actively to have been rejected. Section 7 rights of individuals cannot be decided, in the complete absence of these individuals, by competing parties intent on their own agendas.

Further, in this case, upholding the Respondents’ section 7 position, predicated on the doom of all untreated autistics, greatly risks significant infringement of the section 7 rights of autistic individuals, those whose well-being is supposedly at issue.

Ms Dawson equally rejects the Appellants’ position on this issue, since the government has been demonstrably negligent and irresponsible in its treatment of autistics, both in accepting and acting on grossly prejudicial and stereotypical views of autism, in the complete absence of input from autistic individuals. It is this that has infringed on the lives, liberty, and security of autistic Canadians.




Ms Dawson notes that both the Appellants and the Respondents have answered the constitutional question issued by McLachlin, C.J. in the same manner. The first and third are responded to with “No”, and the second and fourth do not apply. Ms Dawson agrees with both the parties in these responses.

The following orders are requested:

That the Respondents’ request to uphold the British Columbia Court of Appeal finding of an infringement of s.15(1) in the particular circumstances of this case be denied.

That the Respondents’ request for the cross-appeal to be allowed be denied and:

the requested modification to the remedy be denied.

the request for a finding that section 7 of the Charter has been infringed by the Appellants’ refusal or failure to fund effective autism treatment be denied.

That the Appellants be directed to carry out their responsibilities towards autistic individuals, on the premise that the values of Canadian society, as represented by the Charter, should be extended to these individuals, and that they must for their rights not be infringed, be consulted as to what services they require and how these services should be provided.

The Whole Respectfully Submitted.
Attorneys for the Intervener Michelle Dawson



Cited at 

E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388, at p. 429

Eaton v. Brandt County Board of Education, [1997] 1 S.C.R. 241, at para 67

Eldridge v. A.G. B.C., [1997] 3 S.C.R. 624

Hislop v. A.G. Canada, [2003] O.J. no. 5212, at para 78

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

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

Vriend v. Alberta, [1998] 1 S.C.R. 493, at para 69


For the full text of the Charter, click here.

For further developments see:
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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