The deadline came and went. Canada has survived. But how is Canadian democracy holding up?
This week, the deadline set by the Supreme Court for Parliament to enact medically assisted dying legislation passed without Bill C-14 becoming law. In an effort to meet their target date, the federal Liberals greatly accelerated the legislative schedule and warned darkly of chaos if it wasn’t passed in time. Prime Minister Justin Trudeau’s flying elbow was an outward sign of his impatience in trying to get the House of Commons to abide by the court’s timeline. In the end, however, the newly independent Senate delayed the bill for further consideration, and the deadline passed. Since all provinces have adopted guidelines based on the original court ruling, this short absence of a law should present no substantive issues. The real concern is not that Parliament missed a court-appointed deadline, but why it should be considered necessary for Parliament to dance to the Supreme Court’s tune in the first place.
Assisted dying is one of the most controversial and widely debated topics of our generation, entailing many serious moral and practical issues. It is precisely this type of policy conundrum that our parliamentary system was designed to sort out. Law-making in Canada can be a messy, complicated and time-consuming business, but whatever result Parliament finally produces carries the unmistakable stamp of democratic deliberation. If the public disapproves of the outcome, they can have their say in four years or less. Yet this time-honoured process has been perverted in the case of assisted dying.
The alleged urgency of passing C-14 is entirely arbitrary, and largely hypocritical. Recall that in the 1993 case of Sue Rodriguez, the Supreme Court held there was no constitutional right to an assisted death. In 2015, the court reinterpreted the Charter’s guarantees of “life, liberty and security of the person” to include the right to take one’s own life at a time of one’s choosing, subject to certain conditions. Regardless of the merits of either decision, it took the Supreme Court 22 years to change its mind. Then it turned around and gave Parliament just 12 months to comply with its new opinion.
The difficult task of adapting the Supreme Court’s unprecedented decision into law was interrupted by the longest election campaign in modern Canadian history. While the Harper government made little progress on this file, in December the newly elected Trudeau Liberals asked for a six-month extension to allow the parliamentary process to unfold as it should. The Supreme Court refused this request, providing just four additional months. As is now obvious, that shorter time frame was inappropriate and ill-advised.
In attempting to dictate the timing of legislative activity, the court has strayed too far from its intended role as arbiter of the law and become an active participant in law-making itself. But this judicial incursion doesn’t stop with the artificial deadline. While the Supreme Court ruling says assisted dying should be made available to competent adults facing a “grievous and irremediable” medical condition, the Liberals’ Bill C-14 refines this to cover individuals who face a “reasonably foreseeable” risk of dying; in other words, terminal cases. It seems a sensible first step considering Canada is walking into uncharted territory. Plus, the bill mandates further study on the broader application of assisted dying to minors, in advance of debilitating conditions or in cases of mental illness. Yet appeal-court rulings are already challenging this graduated approach. Some experts claim it’s unconstitutional for Parliament to express itself in any way on this topic. If such views take hold, Canada’s elected representatives will be turned into mere scribes—meekly copying down pronouncements from unelected judges.
For the sake of Canada’s democratic system, Parliament must protect its turf with far more gumption. Trudeau, for example, could have ignored the court’s arbitrary deadline and simply taken the six extra months he needed, invoking the notwithstanding clause if necessary. And the federal government should vigorously defend its measured and gradual approach to a right that did not even exist 16 months ago. Legislators must be allowed to legislate.
In a speech last week, Chief Justice Beverley McLachlin, who clashed sharply with former Prime Minister Stephen Harper over matters of judicial activism, said Canada’s courts must show “due deference” to Parliament and provincial legislatures for their “pre-eminent law-making role and their ability to arrive at optimal solutions through debate and research. Such deference is particularly important on complex social and economic issues.” Current evidence, unfortunately, contradicts these fine sentiments. On an exceedingly complex issue such as assisted dying, the court has shown a striking lack of deference to Parliament. The court should act as it talks.
The Supreme Court has an extremely important role to play in Canada’s democracy. But its role is not to write laws, or put elected representatives on the clock. Parliament needs to stand up for itself.