Next week the Supreme Court will hold an oral hearing on the federal government’s requested 6-month extension of the Criminal Code’s unconstitutional prohibition on assisted suicide law.
The Court stuck down the law in the Carter case last February, but its remedy included a “suspended declaration” – meaning the impugned legislation would stay in place for a year while Parliament determined how to replace it.
The suspended declaration remedy was once a rarely used innovation, designed to ensure that when courts found particular laws unconstitutional they didn’t do more damage than good when invalidating entire provisions or create unintended absurdities or legal vaccuums. These days, however, it seems as though courts regularly invoke the remedy anytime they even suspect the legislature might have an interest in making amendments or bringing in a new legislation. The courts seem to overlook the fact that suspending the declaration means individuals continue to suffer rights infringements in the interim, the very reason that the remedy should only be used in exceptional circumstances.
In the context of the assisted suicide law, a suspended declaration is unnecessary for two reasons. First, provincial regulation governing access and defining issues around informed consent will likely end up being more important than any criminal law Parliament ultimately decides. Indeed, Quebec’s new scheme is being closely examined as the model the feds are likely to adopt.
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Second, and more importantly, the suspended declaration was unnecessary in the first place. The Court articulated a clear baseline for the circumstances under which assisted suicide cannot be restricted. The absence of an explicit “assisted suicide” law does not leave a legal vaccuum in contexts where consent does not exist – to put it simply, homicide is still homicide. Indeed, it is an open question, in my view, whether the federal government should even take any action at all. Criminal law may not be the appropriate instrument for regulating assisted dying.
These arguments will no doubt play a role in next Monday’s hearing, but I fully expect the Court to grant the government its requested extension. This is a shame, because it will mean another 6 months of uncertainy and weak access for people suffering under the weight of an unjust – and unconstitutional – law.