Guelph Mercury

Should Canada be at ease with its judicial activism?

The Canadian Constitution, the supreme law of the land, allows judges to invalidate laws that are unconstitutional.

Constitutionality rulings can be thorny, as they often involve significant value judgements that pit constitutional rights against the objectives of legislatures. For example, earlier this summer a British Columbia judge gave permission for a terminally ill woman to commit suicide with the assistance of a physician. The case is currently on appeal to the B.C. Court of Appeal.

Assisted suicide is a criminal offence and physicians are deterred from providing it by current law. Justice Lynn Smith, in her ruling on the constitutionality of the prohibition on physician-assisted suicide, noted Canadians travel to Switzerland for assisted suicide at high cost and possible risk of criminal prosecution for relatives.

The plaintiffs challenged this law based on equality rights within the Charter.

Gloria Taylor, one of the plaintiffs, suffers from a physical disability that prevents her from committing suicide herself. The absolute prohibition against assisted suicide “imposes a disproportionate burden on persons who are physically disabled,” resulting in discrimination, they argue.

The plaintiffs also argued Taylor’s Charter right to life, liberty, and security of the person were infringed. Liberty rights, they argued, are infringed when the state prevents grievously ill individuals from making fundamental personal decisions.

In response, the Attorney General of Canada argued the right to liberty does not provide a right to physician-assisted suicide. Finally, the plaintiffs argued Taylor’s right to life was violated in depriving her of the right to make the decision to end her life. The attorney general argued that the right to life does not include the right to death, and that this interpretation contradicts the obvious meaning of the right to life.

Justice Smith found the absolute prohibition on assisted suicide has a pressing and substantial objective: “to prevent vulnerable persons from being induced to commit suicide at times of weakness.”

However, this purpose could have been done in a way that impaired Taylor’s equality rights as little as possible: by having an almost-absolute prohibition instead which would allow people like her who are mentally competent and free from coercion to access physician-assisted death.

Further, Smith recognized that fundamental social values were at play in deciding on whether to permit physician-assisted death, and that considerable deference is due by the courts to Parliament. Yet, she argued the need for deference does not override the courts’ constitutional duty to rule on rights infringements.

She also agreed with the plaintiffs that it is up to the courts to balance Parliament’s objective of preventing vulnerable persons from being induced to commit suicide against the constitutional rights of the plaintiffs.

Smith gave Parliament one year to change the law, but also granted an exemption to the current law for Taylor. She would be required to provide a written order to the court with testimony by her attending physician that she is terminally ill and near death after being informed of her diagnosis, possible treatments and risks, given a palliative care consultation, and be given an opportunity to change her mind. If the following conditions are met, the court would legally allow Taylor the right to physician-assisted death.

The attorney general argued that by creating an exemption, Smith usurped the role of Parliament and would open the door to applications for similar exemptions.

In its appeal, the Attorney General of Canada argued that creating exceptions to the legislation without the input of Parliament was not appropriate. The attorney general asked for a temporary stay of the declaration of invalidity.

The appellate judge, Justice Jo-Ann Prowse, agreed that Parliament has the duty to promote and protect the public interest, and that the absolute prohibition on physician-assisted suicide was designed to protect the public. However, she refused to stay the declaration.

The Appeal Court is set to hear the case sometime in March.

Two cases brought to the United Kingdom High Court highlight a parallel judicial approach.

In a similar case to Taylor’s, two mentally competent but physically paralyzed individuals sought remedies from the court to be granted access to physician-assisted suicide.

“These are tragic cases,” Justice Roger Toulson notes, as “they present society with legal and ethical questions of the most difficult kind.”

Unlike Smith, Toulson ultimately concludes that it is not up to the courts to make major changes in the law. Justice John Royce supported this arguing that having judges step in to change laws would “usurp the function of Parliament in this classically sensitive area.” Justice Julia Macur also concurred, stating it must be Parliament, and not unelected judges, who must adjudicate the issue.

The Canadian and British precedents are an interesting comparison. Both cases involved individuals who were mentally competent but physically unable to end their lives, and both countries have similar laws preventing physician-assisted suicide and have courts that can declare laws unconstitutional.

These cases are both tragic, but pose an interesting societal question: Should legislatures or courts have the final say in matters of law?

Original post here

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