In an odd twist of Canadian history and fate, a British Columbia lawyer is defending the Supreme Court of Canada against the federal government.
Almost a year ago, on Feb. 6, 2015, the Supreme Court unanimously ruled that some Criminal Code sections were unconstitutional: it said that a very small group of people are entitled under constitutional law to a physician’s help to die.
The court then said its ruling would not come into effect for 12 months to give governments, if they chose, time to legislate on the matter.
But last Monday, the federal government went back to the Supreme Court to request a further six-month delay. The government claimed that the “important and complex issues require extensive work” that “cannot reasonably be completed” before the looming deadline.
Perhaps a fair translation of this government request is: “The dog ate my homework.”
Ottawa had plenty of time to act. After all, it has been a defendant in the litigation since 2011, when the case was launched in the British Columbia Supreme Court. In the intervening five years, the federal government had only two possibilities for which to prepare: a win or a loss.
But the former Conservative government of Stephen Harper did little. And that left the political hot potato for the Trudeau government, which might amend the Criminal Code by the deadline, but says it cannot.
Both governments have put the Supreme Court in a very awkward position.
The people’s elected representatives gave Canada’s judges the power and duty to strike down legislation that violates human rights. The Supreme Court did. Now it lies ill in the mouths of governments to say, in effect, “We cannot adequately perform within a system that we created,” especially when government delay risks prolonging intolerable suffering.
So on Monday, Joseph Arvay, the lead lawyer for the original plaintiffs, had to argue that the court should uphold its own decision. He had to remind the court that its original judgment was sufficiently narrow and clear that doctors could give effect to it for the small group of people.
More importantly, Arvay had to name the elephant in the room: that federal government response seems focused on whether the court’s original decision should be implemented, when the only constitutionally legitimate question for governments is how.
No longer prime minister, Harper and his disdain for Charter of Rights limitations on government power continues to haunt the court, putting it in a near impossible political position. If the court grants the requested government extension, then the court might be seen to be endorsing dilatory government behaviour. If the court turns down the government request, then it might appear insufficiently deferential.
What’s more, the situation was avoidable. The federal government did not have to go to court. It could have invoked the notwithstanding clause (Section 33 of the charter permits governments to override a judicial decision and to violate a charter right). But that route would have led to political awkwardness for the government. Instead, the awkwardness has been transferred to the court.
In reminding the court that the issue is continued unconstitutional, intolerable human suffering, Arvay made clear the court’s role. Although that role originated in political decision-making, it is not about politics. The court’s constitutional duty is to decide when government violates human rights.
In weighing the failure of two successive federal governments to do their homework, the court is obligated to weigh also the terrible plight of a few Canadians. Like those people who leapt from the burning World Trade Center on 9/11, some unfortunate souls have only limited and horrible options. As Arvay argued, “No one wants to die if living is better.”
A government that can respond to the suffering and death of a little boy on a Turkish beach by admitting thousands of refugees rapidly can probably respond rapidly again. This time, the challenge is to permit a clearly-and-narrowly-defined, small group of Canadians suffering intolerably to exercise their constitutional right to physician assistance in dying.
Juliet Guichon is an assistant professor at the Cumming School of Medicine at the University of Calgary.
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