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Social Justice: Swallowing the bitter pill

|Written By Michelle Mann

A case currently awaiting leave from the Supreme Court of Canada could see the old pro-choice adage, "Keep your courts off my ovaries," take on new form in a far different context.

Shaun Joshua Deacon, considered a "homosexual pedophile" by the Federal Court of Appeal, would like the Parole Board to keep its orders off his "deviant arousals" as described by the board.

And he is not the only one. Not only do pro-choicers want the state's hands off our bodies, but so do Jehovah's Witnesses, some mentally ill, and the occasional pregnant woman, among others.

Where do we draw limits on the state's ability to interfere with our personal and bodily liberty?

The Supreme Court will have to address this touchy question in Deacon v. Canada (Attorney General) if it grants leave to Deacon, who lost a s. 7 Charter challenge to the Parole Board's order forcing him to take medication equating to chemical castration.

Make no mistake, Deacon has repeatedly offended against children and been found to pose an extraordinary continuing risk to the public, thus his long-term offender status. The medication prescribed is designed to address his sexual urges and behaviours and includes anti-androgen medication ("chemical castration").

Deacon clearly experiences numerous unpleasant and unhealthy side effects from the medications.

Essentially, Deacon argues, he must choose between his "liberty" and "security of the person" interests: he can take the meds and get parole, or refuse and remain incarcerated.

The Federal Court of Appeal concluded that his constitutional rights to liberty and security of the person are engaged by the order, but the limitation of these rights is in accordance with the principles of fundamental justice, thereby not infringing s. 7.

As noted by the court: "We cannot deal with long-term offenders as if there are no constitutional Charter rights; equally, we cannot consider Charter rights as if there are no long-term offenders."

It now falls in the Supreme Court's judicial lap to decide whether to decide just how sacrosanct our rights to bodily integrity are.

State intervention to protect the health of a fetus is one charged debate with which the Supreme Court has already had to contend. In 1997, the SCC refused to allow Winnipeg Child and Family Services to take a pregnant glue-sniffing addict into custody to protect her five-month old fetus.

To make such an order, the court said, would radically invade the fundamental liberties of the mother with respect to lifestyle choices, thereby intruding upon the rights of all women.

Fetal rights are one issue that I, as a pro-choice feminist, am not keen to see revisited, though the facts of this case made for a bittersweet victory.

Nonetheless, bad facts make bad law, as lawyers like to say.

The state and the courts will intervene with the bodily integrity of a child once it is born, invoking their inherent parens patriae jurisdiction. This has occurred with children of Jehovah's Witnesses who refuse blood transfusions deemed medically necessary by doctors. Despite their opposition and capacity, treatment has nonetheless been ordered for these children.

Equally, the mentally ill, once statutorily determined to be lacking in capacity, may also have medical treatment administered without their consent.

Courts have also overridden Charter-protected liberty rights in the name of public health. In 2002, an Ontario court approved the detainment and forced treatment of an individual infected with tuberculosis, concluding that the violation of his Charter rights was justified (Toronto v. Deakin).

Post-SARS-amended federal and provincial legislation contains some pretty draconian state powers in case of an epidemic, though they have yet to be tested. Ontario's Health Protection and Promotion Act, for example, contains increased provincial powers to quarantine classes of people, rather than just individuals.

Simultaneously, families cannot be compelled to be immunized under current law (recall the 2005 rubella outbreak in Norwich, Ont.); any such attempts would surely be subjected to a Charter challenge.

The constant push and pull between individual liberties at one end and the interventionist state obligation to protect at the other is a healthy tension.

As the Federal Court of Appeal concluded in Deacon, there exists no absolute rule concerning the right to refuse medical treatment in every situation. Rather, the right to refuse medical treatment is properly subject to limitations in certain contexts.

Deacon is of course a less than sympathetic challenger. As duly noted by the court, he can choose to remain incarcerated rather than take the medication, choosing between a rock and a hard place.

Perhaps he will choose the former. Given his recidivism record and the general lack of successful treatment for pedophiles, the public can only hope to be so lucky. To parole this offender only to have him re-offend would be too bitter a pill for the public to swallow.


Michelle Mann is a Toronto-based lawyer, writer, consultant and host of @issue on the ichannel. Check out her website at www.michellemann.ca

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