Twenty years ago, Sue Rodriguez of British Columbia, a mother of one in her 40s, was dying of amyotrophic lateral sclerosis, and argued that she had the right to be helped to die. The Supreme Court, by the narrowest majority, 5-4, disagreed. “No new consensus has emerged” supporting the existence of such a right, the late justice John Sopinka wrote.
The country’s highest court will now have an opportunity to revisit that decision – and recent cases suggest a change of heart on the highest bench in the country is possible. The court’s openness to revisit its own rulings sets up a classic challenge between Parliament’s power to resolve contentious social issues, and judges’ willingness to assert themselves to protect vulnerable individuals such as those who are dying in pain.
Judges’ understanding of constitutional rights changes with the times, Joel Bakan, a law professor at the University of British Columbia, says. “The cliché about constitutional law is that we’re supposed to treat it as a living tree. That inevitably means the court revisits older decisions to reflect contemporary values and understanding of how the world should be.”
He cited four examples that expressly overturned previous rulings: In B.C. Health Services (2007), the court said collective-bargaining rights have constitutional protection; in R.W.D.S.U. (2002), secondary picketing obtained constitutional free-speech protection; in Burns and Rafay (2001), extradition to face a possible death penalty was no longer permitted; and in perhaps the best known example in recent times, the court banned discrimination against pregnant women in Brooks (1989).
As a new challenge to Canada’s criminal-law prohibition of doctor-assisted suicide is set to reach the Supreme Court, Quebec has proposed a law that would allow for physician-assisted suicide and the widow of a well-known Ontario medical scientist has released his videotaped plea in favour of that principle.
“The thinking around euthanasia, the practice around it, the examples [from other countries] that built protections in to make sure people aren’t taken undue advantage of – we have so much more information around this issue than we did in 1993,” Prof. Bakan said. “This is a pretty good candidate for the Supreme Court to say, ‘the world has changed.’ ”
And sometimes the court simply looks back at an older ruling and says it was just plain wrong. “That is always open to the court,” Carissima Mathen, a law professor at the University of Ottawa, says. “They’re not bound by their precedents in the same way as a lower court is.”
The court could also stand up and say to heck with the consensus – a right is a right. But that is rare, David Schneiderman, a law professor at the University of Toronto, says. “You’d think that would be their job, but the court can’t do that too much. They simply can’t go too far ahead of let’s say dominant Canadian opinion. They’d lose their legitimacy to resolve these kinds of highly contentious issues.”
Even so, a case involving the rights of terminally ill people in extreme pain may be one in which the court will spend its political capital. “It could be that the court reads the tea leaves of history and decides this is the moment to protect those whose needs are not going to be considered in the political process,” Prof. Mathen said.
From that 5-4 split court in 1993, only Chief Justice Beverley McLachlin (then a junior judge) remains. She sided with Ms. Rodriguez. While the current court is generally perceived to favour judicial restraint, Prof. Bakan says “this is a thoughtful court that is not in any way shy” about revisiting a constitutional discussion.