From Canwest News Service in Canada:Peter Mathisen told his murder trial he couldn't remember exactly what happened between the time he fell on his wife and the time he got off her, when he realized she was no longer moving. His appeal lawyer is launching an accident defence, citing Mathisen's weight - which was about 380 pounds the night he landed on top of his five-foot-two, 165-pound wife.
Obesity issues are in the courts in Canada and in the U.S, in two cases: one involving Mathisen, convicted of murdering his wife in 2001 when he knelt on her during an argument; the other, a Texas woman, who in medical terms is morbidly obese, charged with first-degree murder in the beating death of her two-year-old nephew.
Mayra Rosales claims she accidentally fell on the child. Her lawyer says because of her weight she's physically incapable of having beaten the boy; she has trouble moving her arms. She weighs a reported 800 to 1,000 pounds. Too fat to fit through her front door, Rosales appeared in court last week via video teleconference.
From criminal courts, to Canada's top court, the issue of whether obesity qualifies as a disability is raising questions about crime and punishment, as well as human rights.
The Supreme Court cleared the way Thursday for disabled people - including the severely obese - to be entitled to a free extra seat on domestic flights after refusing to consider an appeal by Air Canada and WestJet.
In January, the Canadian Transportation Agency ordered Air Canada, Air Canada Jazz and WestJet to bring in a one person-, one fare-policy, in which disabled travellers don't have to pay extra if they need a second seat for a travelling companion. Obese people also can quality if they are too large to fit in a single seat.
The court decision comes as the number of severely obese - people whose body mass index is greater than 40 - make up the fastest growing population of obesity.
Body mass index (BMI) is a measure of body fat based on height and weight. A BMI of 18.5 to 24.9 is considered average.
Doctors who specialize in obesity estimate there are now 1.5 million severely obese people in Canada.If obesity becomes listed as a disability in legal standards, movie theatres, restaurants, hospitals, schools and other public buildings would have to take steps to accommodate people disabled by their sheer mass, observers say. That means wider turnstiles, wider hallways, bigger chairs; reinforced seats in stadiums and on ferries; public washrooms with wider stalls and toilets.
Even prisons would need be brought to code. Two weeks ago, a morbidly obese convict was released from Quebec prison three months before he was eligible to be set free, after the parole board ruled his prison wasn't adapted to his heavy girth. Michel "Big Mike" Lapointe weighs 430 pounds.In the Mathisen case, the six-foot-four father of three - who was serving a minimum 10-year sentence - was granted a new trial this month after the Ontario Court of Appeal ruled the jury that convicted him of second-degree murder in 2005 hadn't been allowed to conclude Jane Mathisen's death was accidental. According to court documents, the couple was having marital problems and Jane Mathisen, who was seeing another man, told her husband less than a month before her death that she wanted a divorce.
Mathisen's appeal lawyer, Clayton Ruby, says the accident defence becomes plausible because of Mathisen's weight.
"The case is about accident, not about disability," Ruby says, "but I think that his disability is what makes that plausible.
"I weigh 200 pounds. If a lay down on top of a woman of average build my weight would not be thought to have killed her unless it was deliberate. But if you weigh 385 pounds, then accident becomes viable, it becomes a reasonable possibility as to how the event occurred. "In that sense, it's obesity and disability related."
Ruby believes the case sets a precedent for people who "have a weight that's sufficiently large that you could accidentally cause death."
But is obesity in and of itself a disability?
And are there circumstances where it could constitute a credible defence in criminal law?
"When an airline said a heavy person had to buy two seats rather than one, that was
discrimination on the grounds of disability," says Bernard Dickens, professor emeritus of health law and policy at the University of Toronto's faculty of law.
Whether the weight is due to an organic medical condition, genes, overeating, a food addiction, or "whatever other dissatisfactions there are in life, whichever way you approach it, I think it's fairly clear that obesity itself could be characterized a disability," Dickens says.
But how big does someone have to be in order to be considered disabled?
Dr. David Lau, chair of the diabetes and endocrine research group at the University of Calgary, believes class III obesity, a BMI of 40 and up, should be considered a disability and a disease because the majority of medical problems is associated with that kind of weight.
But Dr. Yoni Freedhoff says there are people who weigh well into the super-obese range who have no health complications. "I've seen people weighing upwards of 400 pounds leading very normal lives," says Freedhoff, of the Bariatric Medical Institute in Ottawa.
"I've also seen people in the same weight category who require walkers or scooters to get around."
"To state a blanket, 'obesity is a disability,' as a criminal sort of defence or for human rights, I don't think it's true. I think it's something that would have to be assessed on a case-by-case basis."
In the U.S., groups are lobbying for laws to prevent discrimination based on weight.
"There's tons of research about it, documenting everything from employment discrimination - wages are lower - to health-care discrimination. People get terrible treatment from doctors. There are surveys of nurses saying they don't want to touch fat people," says Anna Kirkland, author of Fat Rights: Dilemmas of Difference and Personhood, and an assistant professor in women's studies and political science at the University of Michigan.
Dickens says there are cases where the obese might be excluded from jobs where their weight could be an issue. For example, firefighters who have to fit through small gaps or stand on insecure footings, whose extra girth would be a risk.
"There still may be justified discrimination on the grounds of that disability," Dickens says. "Whether it's a criminal defence is much more doubtable."
A pathologist testifying in Mathisen's defence at his murder trial said Jane Mathisen's injuries were consistent with traumatic asphyxia, normally seen in cases where someone is crushed by a large object, such as a car or heavy machinery.
"Certainly, it's plausible and conceivable that a very overweight person can accidentally - as a result of his or her body weight - affect another person in a manner that is totally unanticipated," Lau says.
Dickens says the jury in the Mathisen case was entitled to have been told that Jane Mathisen's death could have been accidental. "Whether he is convicted or acquitted on retrial, the fact the jury should have been told about this is significant."
But, "Does this mean that obese people can have impunity to commit injuries? The answer is no, he says.
"Obese people now know that if they literally throw their weight about, if they use their bulk to put other people to disadvantage, they know that could cause injury. They can't claim they didn't know, anymore," he says.
"They now know that, if in conflicts or even in sexual interactions their bulk poses a risk to another person, they have to exercise reasonable care."
