Globe and Mail columnist Jeffrey Simpson.The Globe and Mail
Legal scholars like the word "dialogue" to explain the relationship between the Supreme Court, and courts in general, and Parliament.
"Dialogue" is a seductive word. Who can be against "dialogue"? It means an exchange of views between at least two people, one perhaps learning from the other.
Except that, since courts are more popular than legislatures, judges more respected than politicians, and legal scholars themselves prefer the legalisms of courts to the hurly-burly of politics, "dialogue" usually means for them that the courts should tell Parliament what to do, and Parliament should follow.
That's not dialogue but rather diktat, which leads to the question in some policy areas: Who is making the laws? Judges or elected officials? In the age of the Charter of Rights and Freedoms (the most Americanizing influence on contemporary Canada), the answer is often judges.
Some critics decry the federal government's proposed legislation on medically assisted death (or right-to-die, if you prefer), which itself is a response to a Supreme Court ruling legalizing and defining the practice; they argue that Bill C-14 does not go as far in allowing the practice as the top court had suggested in its February, 2015, ruling.
Critics consider that Bill C-14, now before the Senate, varies to some extent from the Supreme Court's ruling and the recent interventions by high courts in Alberta and Ontario, and is therefore unconstitutional.
Just you wait, the critics argue: Somebody will immediately challenge the new law and the Supreme Court will strike it down. Maybe the critics are right. Maybe the critics are wrong. But critics possess a certainty about a possible case whose parameters cannot be foretold, whose arguments cannot be predicted before a court whose decision cannot be yet carved in judicial stone.
All this parliamentary debate on a complicated and emotional subject is being held under a timeline imposed by the Supreme Court. At first, the judges gave Parliament a year to pass a law along the lines the court had outlined. The previous Conservative government was not keen on such a law and predictably delayed, after which an election got in the way.
So the court, when asked, blessed the new Trudeau government with another four months, to June 6, to get cracking and pass something. This four-month extension was completely arbitrary – it could have been six months or seven or eight.
Faced with the court-imposed deadline, Parliament has been speeding up matters, which is unfortunate for an issue of this complexity. Legislatures are messy institutions that sometimes take longer than might be hoped to deal with things, but then such is public affairs.
When Bill C-14 is finalized, what if some of its terms do not quite line up with the wording or the strict intent of the Supreme Court's ruling?
A real "dialogue" – that word beloved of legal scholars – would then have taken place. Parliament would have heard the court and accepted some of the judges' reasoning and intent, but decided on some variances.
At issue seems to be that the Liberal government's bill restricts the "right-to-die" to people who are terminally ill whereas the court ruling offered a wider right. The Alberta Court of Appeal recently weighed in, insisting that death need not be "reasonably foreseeable," as the proposed bill suggests, but rather a more amorphous notion of the loss of quality of life.
Assisted death is something new in Canada. We have only scattered international experience on which to draw. Our physicians and hospitals, where the deaths would likely occur, are not schooled in handling assisted death. Perhaps that explains why the Canadian Medical Association supports the government's bill that is somewhat more restrictive that the Supreme Court ruling.
Who is to say with certainty, therefore, that the court or the government is right or wrong on an issue so new and complicated?
The court, as it must, had to construct arguments of theory and what it presumed to be the law, reading assisted death into the Charter of Rights. It will not administer whatever law emerges; indeed, it would be difficult to imagine judges knowing much about how to administer any law in this new field.
So if "dialogue" were truly a two-way street, as opposed to diktat, the court, if asked, would say: We gave Parliament guidance, not all of which was accepted. Fine. Let the law be the law. We judges are not omnipotent, especially in a new field where law is being created.
Let trial and error unfold before we revisit the issue, if revisit it we must.