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Uneasiness over ruling buying time

Thursday, January 28, 2016 @ 7:00 PM | By Cristin Schmitz


The Supreme Court’s 9-0 decision granting Parliament more time to come up with a law on physician-assisted death has cast a critical spotlight on the court’s common practice of suspending its declarations of constitutional invalidity to give legislators time to enact replacement laws.

On Jan. 15, the top court extended a Feb. 6, 2016 deadline by four months to June 6 to devise a new law to fill the impending vacuum when the court’s invalidation of the Criminal Code’s blanket ban on assisted suicide kicks in: Carter v. Canada (Attorney General) [2016] SCC 4.

In last year’s landmark Carter v. Canada (A.G.) [2015] SCC 5, the judges unanimously struck down sections 241(b) and 14 of the code “to the extent that they prohibit physicianassisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”

Without explaining why, the court also followed its usual practice of suspending its declaration of invalidity for 12 months to give federal and provincial legislatures time “to respond, should they so choose, by enacting legislation consistent with the constitutional parameters set out in these reasons.”

In the intervening months, Quebec was the only province to proclaim health law legislation facilitating physicianassisted death. The other provinces are waiting for criminal law amendments before acting, while the federal Conservative government did not table a bill before losing power to the Liberals last October.

The new government then asked the Supreme Court to suspend its declaration of constitutional invalidity for a further six months to allow the majority Liberals to pass legislation.

The top court refused, holding 9-0 that an extension of only four months was justified.

“To suspend a declaration of the constitutional invalidity of a law is an extraordinary step, since its effect is to maintain an unconstitutional law in breach of the constitutional rights of members of Canadian society. To extend such a suspension is even more problematic,” Justices Rosalie Abella, Andromache Karakatsanis, Richard Wagner, Clément Gascon and Suzanne Côté explained in jointly authored reasons.

“Extraordinary circumstances must be shown,” they stipulated. “The burden on the attorney general who seeks an extension of a suspension of a declaration of constitutional invalidity is heavy.”

The whole court accepted that the four-month hiatus of Parliament due to the election delayed work on a legislative response to Carter and thus amounted to an “exceptional circumstance.”

University of Ottawa law professor Sébastien Grammond told The Lawyers Weekly the decision has triggered legal debate about whether the court is suspending its declarations of constitutional invalidity too easily.

He suggested in future the court “might ask lawyers to argue more specifically for granting a suspension, and [granting] it might not be automatic.”

The Supreme Court’s practice of leaving unconstitutional laws in place, and allowing constitutional violations to continue while a legislature considers its next step, is “troubling” and “anomalous,” said Osgoode Hall law professor Jamie Cameron.

“The Constitution is the supreme law of the land and a year is a long time in the life of a constitutional right,” Cameron explained by email. “The consequences for rights are even more serious when a legislature seeks an extension after failing to act. Such extensions should almost never be available and should only be granted in exceptional circumstances — when it was impossible for the legislature to act within the period of suspension, or it had no other options, and circumstances demand a further moratorium on the enjoyment of constitutional rights. These conditions have not been met here.”

The five judges led by Justice Abella (with Chief Justice Beverley McLachlin, and Justices Thomas Cromwell, Michael Moldaver and Russell Brown dissenting on this point) went on to grant Quebec’s request for a constitutional exemption from the court’s four-month extension of the suspension of the declaration of invalidity.

The move enables Quebec’s law on assisted dying to operate during those four months without anyone fearing they might be violating the criminal prohibition of assisted suicide or facing potential civil liability. The majority noted that the attorneys general of Canada, B.C. and Ontario, who participated in the case, did not oppose the exemption.

The majority also went on to grant the B.C. Civil Liberties Association and others who successfully challenged the blanket ban on assisted suicide their request for a constitutional exemption during the four months the law remains in force outside Quebec after the Feb. 6 deadline.

The majority ruled that people outside Quebec who wish to seek assistance from a physician to hasten their death, in accordance with the criteria set out in Carter, may apply to the superior court of their jurisdiction for relief during the extended period of suspension.

“This is the first time the court has been asked to consider whether to grant individual exemptions during an extension of a suspension of a declaration of invalidity,” the majority noted.

“Parliament was given one year to determine what, if any, legislative response was appropriate. In agreeing that more time is needed, we do not at the same time see any need to unfairly prolong the suffering of those who meet the clear criteria we set out in Carter.

“An exemption can mitigate the severe harm that may be occasioned to those adults who have a grievous, intolerable and irremediable medical condition by making a remedy available now pending Parliament’s response. The prejudice to the rights flowing from the fourmonth extension outweighs countervailing considerations.

“Moreover, the grant of an exemption from the extension to Quebec raises concerns of fairness and equality across the country. …Requiring judicial authorization during that interim period ensures compliance with the rule of law and provides an effective safeguard against potential risks to vulnerable people.”

The dissenters said they would not exempt Quebec from the extension. Nor would they provide for individual exemptions. In Carter last year, “the court held that this was not an appropriate case to create a mechanism for exemptions during the period of suspended invalidity,” the minority explained.

“The court wrote that doing so ‘would create uncertainty, undermine the rule of law, and usurp Parliament’s role. Complex regulatory regimes are better created by Parliament than by the courts.’ These considerations, in our view, continue to be compelling.”

Joseph Arvay of Vancouver’s Farris , who with Sheila Tucker of Vancouver’s DLA Piper represented the B.C. Civil Liberties Association and other successful litigants, said the decision “demonstrates that the court expects governments, absent external forces, to respond diligently during periods of suspension.”

He suggested the facts of the Carter case may limit its usefulness as a precedent about extensions. “But more generally it demonstrates that the court is willing to break new remedial ground where a bare suspension is unduly harsh, and that may open the door for more creative arguments in future suspension cases,” Arvay said by email.