Public opinion can play a key role when courts rule on issues such as assisted suicide in which society has a major philosophical divide, Supreme Court jurisprudence shows.
The late Supreme Court justice John Sopinka, rejecting a right to assisted suicide in the 1993 Sue Rodriguez case, anchored his majority ruling in the public consensus: "No consensus can be found in favour of the decriminalization of assisted suicide. To the extent that there is a consensus, it is that human life must be respected."
Judges look to public opinion to identify the central values of society that need defending, scholars say, and should not simply substitute their own values. At the same time, courts hesitate to put their own "political capital" at risk by moving too far in front of public opinion. On abortion and gay marriage, Canadian courts have tended to move in lockstep with public opinion.
A new poll that finds widespread support for assisted suicide may not alter the Supreme Court's views of that consensus, when it hears the Lee Carter case next week. British Columbia Supreme Court Justice Lynn Smith, ruling on that case in 2012, cited polls in which 63 per cent of Canadians supported doctor-assisted suicide. But polls are just one indicator of public opinion; the views of medical organizations, portrayals of the subject in film and the news media, and provincial government responses (in June, Quebec passed a law to allow assisted suicide) form a larger picture of how the public feels.
"I do not find that there is a clear societal consensus either way," Justice Smith wrote, in spite of the polling numbers. But Mr. Sopinka said Canada's views on the issue were rooted in a unanimous rejection, in the West, of assisted suicide. That Western consensus has broken down, Justice Smith said, adding that the practice of assisted suicide in several jurisdictions shows that the risks to vulnerable people can be minimized