The Decision that Changed Everything: Celebrating the 40th Anniversary of the Re Eve Decision

by Dulcie McCallum

Author of The Audacity of Inclusion 

Commentary at the invitation of Inclusion Canada

There are moments in time when the course of history changes forever. Re Eve, decided by the Supreme Court of Canada [SCC], was such a defining moment in Canada’s disability rights movement. This landmark case fundamentally challenged the power of others to make irreversible decisions about the bodies and lives of people labelled intellectually/developmentally disabled.

Eve was a young teenager then living at home with her mother on PEI. She attended a sheltered workshop where she met and became friends with a young boy. When the workshop staff noticed Eve and her friend holding hands, they immediately reported it to her mother.

The mother applied to court to be appointed guardian. On hearing the “disturbing” news from the staff, the mother asked the court to answer a question: if the court sanctioned guardianship, would the order permit her to give substitute consent to have Eve sterilized?

The first Judge to hear the case held sterilization should not be allowed. To protect her privacy as a minor, the court assigned her the name Eve. The Judge also ordered the government to provide Eve with her own lawyer should the case proceed to appeal. The case was appealed and the prohibition order overturned to allow the sterilization to proceed. The Justice department never provided Eve with her own lawyer.

Soon after in-house counsel Orville Endicott brought the case to the attention of the board of what was then the Canadian Association for the Mentally “Retarded” (CAMR) [now Inclusion Canada].

In the 1980s when the Re Eve case surfaced, the board, populated by parents from provincial/territorial organizations from across Canada, was facing many challenges, including a move to change its name to dispose of the “R” word and to move towards a name that focused on its goal: community living. The board had constituted its first Consumer Advisory Board [the Committee], which was made up of self-advocates; people with intellectual disabilities who had never been permitted to sit on the national board.

But there were problems in the ranks. The CAMR board members were divided; some parents were pro sterilization as they mistakenly considered it a way to protect their family member. Others were against it. The board could not reach consensus on whether to become involved.

Dulcie McCallum (left) photographed with Peter Park (right).

And that is when the stars aligned.

One star, Barb Goode, was chairing the Committee that was made up solely of self-advocates including Peter Park and Harold Barnes. The Committee did not hesitate. They were adamant — and unanimous — that they had to stand up for Eve and for all labelled people about who controlled their bodies and lives. The second star, David Vickers, a prominent BC lawyer who sat on the CAMR board, offered to take the case pro bono, and since the board was not in alignment, he would act as legal counsel for the Committee.

The case took a long time to reach the Supreme Court of Canada [SCC] because there was work to be done. First, there was the question of standing. In order to apply to be an Intervener, a person or group had be considered legally competent to have standing. Historically, all people labelled intellectually disabled going before the courts had to have a litigation guardian appointed, a third-party to represent them.

Vickers made an application to the SCC and, for the first time in history, the Committee members, all of whom were labelled with the “R” word, were granted standing as an Intervenor.

Immediately, the Committee set about to prepare their legal brief. That’s where I came in. Vickers tasked me as his junior associate to support the Committee in writing their factum [written legal arguments]. It took countless meetings for me to fully understand and relay their message: Eve should never be sterilized for a non-therapeutic reason.

Eve’s situation must be understood within the broader history of eugenics — a discredited ideology that sought to control reproduction based on judgments about whose lives were considered valuable and on the misguided belief that disability was inheritable. Eugenic policies led to the forced sterilization of people with disabilities in Canada and around the world: notably central to the immoral atrocities committed by the Nazi regime.

Judgment day finally arrived: forty years ago today all the members of the Committee gathered in Ottawa to hear the SCC deliver the decision.

The court unanimously rejected the idea that a guardian could consent to sterilizing someone, unless it was clearly for a medically therapeutic reason, which meant necessary as part of treatment to preserve a person’s health. That is exactly what the Committee argued in their factum, a submission with which all members of a full SCC unanimously agreed.

Not long before the Re Eve decision was released, a prepubescent girl “K” was sterilized under a BC court order. Vickers attempted to appeal that order but the hysterectomy was done before the SCC could hear the appeal. In delivering the Re Eve judgment, the SCC declared its displeasure with the outcome of the Re K case, stating unequivocally that the sterilization of the child in K’s circumstances came perilously close to not being therapeutic.

Why is it so important to celebrate this watershed moment?

Decades later the principles at the heart of Re Eve remain profoundly relevant. Rights can never be taken for granted. People with intellectual disabilities continue to confront those that question their autonomy, limit their choices, and too often make decisions about their lives without their meaningful input. Whether the issue is institutionalization, exclusion from inclusive education, lack of access to meaningful employment, denial of supports and services needed to sustain quality of life in the community, or exposure to the troubling concerns surrounding medical assistance in dying (MAiD), the underlying questions remain: to whom do we listen, whose choices are respected, and whose lives are valued?

Let’s take this moment to celebrate the Re Eve anniversary by acknowledging, with gratitude, the courage of the Committee whose persistence in pursuit of justice for Eve stands out as a beacon to guide advocates now and in the future. What I learned from working with the Committee left an indelible imprint on me as a young lawyer. Their courage and wisdom should remind us all of the importance of the principle that the voices of the people most affected must always be front and centre in their fight for equality.

About the author:

Dulcie McCallum, RN, LL.B, MFA

Former Ombudsperson for the Province of BC

Special Advisor to Canada's Delegation to the UN [CRPD]

Former Information and Privacy Commissioner for Nova Scotia

Author of The Audacity of Inclusion: Fighting for the Equality of Persons Labelled Intellectually Disabled  https://www.theaudacityofinclusion.com