Skip to main content
opinion

Carissima Mathen is associate professor of law at the University of Ottawa, and a founding member of its Public Law Group.

For Canadian courts, the flurry of litigation over physician-assisted dying is the legal equivalent of finding coal in a Christmas stocking. The most recent example is the Quebec Court of Appeal's bold decision to allow the province's regime of medically assisted dying to remain in effect despite its apparent conflict with federal criminal law.

Last February, the Supreme Court of Canada ruled that the criminal prohibition against assisted suicide violates Section 7 of the Charter of Rights and Freedoms, insofar as the prohibition applies to competent adults with an irremediable medical condition that causes them enduring and intolerable suffering. As it has done in other cases, the court suspended the effect of its ruling for one year.

The delay, the court suggested, would allow the federal and provincial governments, should they wish, to devise an appropriate and constitutional replacement – one that respects an individual's right to make a profound life choice, yet protects vulnerable persons from wrongful killing. For years, Quebec has worked on just such a regime. As the federal government acknowledges, Quebec's Act Respecting End-of-Life Care does an admirable job of devising a carefully regulated system in which competent persons may request, and ultimately receive, medical assistance in dying.

But opponents of the Quebec law sought an injunction to prevent it from coming into effect. At the first hearing, they found a powerful ally in the Attorney-General of Canada. Federal lawyers argued that Quebec's law conflicts with the very criminal law that is to remain in effect until February, 2016.

When a provincial law conflicts with a federal law, it triggers a legal principle known as the "paramountcy doctrine," under which the provincial law is deemed inoperative. Agreeing that paramountcy applies, the Quebec Superior Court initially granted the injunction.

But the Quebec Court of Appeal took a very different approach. In order for paramountcy to apply, it said, the competing laws must be "valid." In this case, the federal law had already been found unconstitutional; it remained in effect only by the grace of the Supreme Court of Canada. Therefore, the Court of Appeal reasoned, the relevant conflict was not between the Quebec law and the Criminal Code, but between the Quebec law and the Supreme Court's ruling. And, based on the Supreme Court's reasons for granting the delay in the first place – to enable governments to devise protective, rights-respecting schemes – the Court of Appeal found that no such conflict exists.

No doubt, constitutional scholars will find much to dispute in the Court of Appeal's reasoning. Should it have occasion to consider the matter, the Supreme Court of Canada may well agree with them. Yet, the Court of Appeal recognizes an uncomfortable truth about suspended declarations: They are exceedingly difficult to reconcile with the rule of law.

While originally crafted to avoid situations of true lawlessness, such declarations have become disturbingly commonplace. Suspensions are now primarily viewed and defended as a tool of judicial restraint and of respect for the legislative process. Doing so arguably masks their extraordinary nature, privileging institutional relations at the expense of constitutional norms.

Throughout the dispute about the Quebec law, the new federal government has appeared somewhat conflicted. After initially arguing that the law was inoperative, the Attorney-General of Canada adopted a much softer tone on appeal. Prime Minister Justin Trudeau has praised Quebec for its careful work on medically assisted dying. Most astonishingly, in asking the Supreme Court for six more months to work on a new criminal law, the federal government has not objected to Quebec's request to be exempted from any continued delay. It is laudable that federal-provincial relations are of such clear concern to the federal Liberals. Hopefully, in its upcoming appearance before the Supreme Court of Canada, the government will be equally solicitous of the Charter and the profound rights violation that it is seeking – however reasonably and for however long a period – to be maintained.