The Supreme Court of Canada's controversial decision to extend the laws which make physician-assisted suicide illegal was riddled with inconsistencies and loopholes.

On Friday, the SCC extended the suspension of the declaration of invalidity issued in Carter last February. The ruling has been (rightly) assailed by critics as unprincipled – even incoherent. I would add just a few observations of my own, focusing on the extension and individual exemption issues, and leaving for another day the provincial exemption issue.

1. The majority purported to extend the suspension, but permitted individuals to apply for exemptions during the extension period. So in what sense do we have a “suspension” at all? Had the suspension lapsed, as scheduled, we would have been left with the (partial) declaration of invalidity. If that remedy means anything, it surely means that individuals can go to a judge and receive judicial recognition that they fall within the category of patients entitled to physician-assisted suicide. Otherwise, how is one to know whether physician-assisted suicide, in a given case, amounts to a criminal offence? As Carissima Mathen and I argued in an earlier post, the “declaration of invalidity” can only sensibly be understood as a kind of reading down. But how is the application for an individual exemption, practically speaking, any different from an application for a declaration that one falls into the exceptional category of patients described in Carter #1?

2. The four dissenting judges, in denying that individual exemptions can be given during the extension period, are more faithful to the spirit of the suspension. Chief Justice McLachlin, of course, wrote the unanimous opinion in Ferguson, in which the Court emphasized that remedies should reflect the institutional role of Parliament, and deployed that rationale to (it seemed at the time) categorically reject the use of constitutional exemptions in favour of declarations of invalidity. In last week’s ruling, the dissenters stated:

“We are not persuaded that the appellants have established a case for a constitutional exemption. In the unanimous judgment on the merits, the Court held that this was not an appropriate case to create a mechanism for exemptions during the period of suspended invalidity.  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”: para. 125. These considerations, in our view, continue to be compelling.”

 

Of course, as Carissima and I observed, the Court is already committed to a “complex regulatory regime” crafted by judges rather than legislators, since (in the absence of legislative action) the language used in the “Carter exception” will need to be fleshed out by judges. Make no mistake: Carter #1 purports to set out a legal test, and not a medical one; doctors may express a view as to whether an individual has “consented” as a matter of medical ethics (or whether a condition is “grievous”) but it will fall to the courts to decide whether that understanding of “consent” is appropriate as a matter of constitutional principle and for the purposes of defining the boundaries of sections 14 and 241(b) of the Code. Whether or not judges want that burden, after Carter #1, they cannot simply shrug it off; it can be taken from their shoulders only with legislative action.

3.  My feeling is that at least some members of the Court do not really take seriously the idea that the (partial) declaration issued in Carter #1 can stand on its own. As Carissima and I argued, there are a number of important policy-laden questions that need to be resolved before one can say who satisfies the “Carter conditions”. It now seems likely that there is a faction on the Court which would much prefer these questions to be resolved by Parliament, rather than judges.

With that in mind, this may not have been a case where, contrary to some suggestions at the time Carter #1 was decided, the Court unreflectively suspended the declaration of invalidity. The Court has long been accused of issuing suspensions without much argument or reasoning, in spite of the fact that they are in serious tension with s 52 of the Constitution Act, 1982. I suspect, though, that this was a case where at least some judges regarded the suspension as a necessary part of the remedy, in much the same way as the suspension was regarded as necessary in the Manitoba Language Rights Reference. In both cases, judges may have thought there was no option but to declare the impugned laws constitutionally invalid. At the same time, it may have been thought intolerable from a rule-of-law perspective to simply leave the matter there. We are not, to be sure, faced with quite the same stark choice that confronted the Court in the Manitoba Language Rights Reference, where giving immediate effect to the declaration would arguably lead to a state of near lawlessness in the province. We are, however, still talking about a situation in which giving immediate effect to the declaration would lead to confusion surrounding the legal permissibility of individuals killing other individuals. To avoid a situation in which it would fall to the courts to flesh out the precise contours of the Carter exception on a case-by-case basis, taking the risk that some physicians and patients would seek judicial benediction after the fact, some members of the Court may have taken the view that a suspension was not just desirable but necessary.

4. On this last point, I’m looking directly at Mr Justice Moldaver. Carissima and I argued that the remedy (shorn of the suspension) must amount to a kind of constructive reading down. But during oral arguments, it seemed as though not all members of the Court agreed with that characterization of the remedy. (A choice selection of live-tweets of the hearing can be found here.) Mr Justice Moldaver, during his exchanges with Joseph Arvay, appeared particularly hesitant to accept that position. He suggested that there was significant room for Parliament to add content to some of the open-ended language used in Carter, and that it might therefore be appropriate for the Court to extend the suspension and give Parliament an opportunity to exercise its authority over social policy. It was that very open-endedness which led Carissima and I to wonder whether the remedy ordered in Carter #1 was any less problematic than other instances of reading in/down. We speculated that the Court’s framing of the remedy as a “declaration” rather than “reading down” was driven by self-consciousness (at least among some of the judges) at just how much it would potentially intrude upon the legislative role. That thin veneer of judicial deference is preserved only so long as the suspension is in place.

5. This brings me back to my first point: Why did the majority extend the suspension with one hand, while acknowledging the possibility of individual exemptions with the other? I think it has much to do with the Court’s interest in preserving the façade of unanimity crafted in Carter #1. I’m sure I was not the only onlooker amazed that the Court was able to produce a unanimous opinion on such a divisive constitutional question. Much of the divisiveness would have concerned the substantive parameters of the Carter exception – again, what it means to “consent”, when a condition is “grievous”, etc. – but much of it would have concerned the extent to which the Court was the appropriate institutional body to decide what the law should be. Leaving the parameters somewhat blurry, characterizing the remedy as a declaration rather than reading in/down, suspending the “declaration”, and then rejecting individual exemptions during the suspension period: all this allowed the Court to reach a consensus that helped “sell” the decision.

Fast forward to Carter #2, and no member of the Court could now suggest that the declaration and suspension had been inappropriate remedies in February 2015. (There are the possible exceptions of Mr Justice Brown, who was not on the Court when Carter #1 was released, or Madam Justice Suzanne Coté, who did not take part in the decision, but I am skeptical that even they would feel entirely free to break the consensus.) Still, there was almost certainly an uneven level of commitment within the Court to extending that remedy. Some members of the Court (call them ‘pro-extenders’) may have wanted to extend the suspension simply because the government needed or wanted more time to act; i.e., on the sole basis that the legislature was the most appropriate institution to craft the physician-assisted dying regime, and had expressed an interest in trying. Other judges (‘anti-extenders’) may have preferred to have no extension at all, on the basis that the exception crafted in Carter #1 provided sufficient guidance to lower courts, and that it was acceptable under the circumstances for judges to put more flesh on its bones on an as-needed basis.

The prolonged federal election may well have forced a compromise. The Court implicitly justified the extension on the relatively narrow grounds that doing so would give the government the 12-month period that had been initially ordered, but no more than that. Even the anti-extenders would have been hard-pressed to explain why the government should not get the time that they themselves had granted. If a suspension for 12 months was appropriate in the first place, what changed? At the same time, there was no robust statement about the importance of “dialogue” or deference to the legislature. On the suspension point, the Court was (just barely) able to hold together the unanimity that characterized the ruling in Carter #1. When it came to the exemption, the Court finally broke in two.

6. There is more to be said, but for now I will leave on this note. Some cases show their significance by being frequently cited and relied upon as authorities in subsequent cases; others show their significance by being studiously ignored, marginalized, and distinguished into virtual irrelevance. I expect that Carter #2 will fall into the latter category.