Sébastien Grammond is a professor in the civil law section at the University of Ottawa.
The law gets a rough ride in the medically assisted dying saga. Advocates of medically assisted dying – who are already challenging the new federal legislation – may be justified in thinking that they are on the right side of history, but that does not mean that each and every one of their legal arguments is correct.
Take, for example, Quebec's insistence on bringing its legislation on physician-assisted dying into force before amendments were made to the Criminal Code. Last December, a judge declared what should have been obvious to any student of the division of powers: that the Criminal Code – federal legislation – took precedence. Yet Quebec's political class unanimously denounced the decision and railroaded the province's law into force. Happily, the Supreme Court of Canada refused to extend the suspension of the 2015 Carter judgment with respect to Quebec, saving everyone's face.
Likewise, the argument most often heard in the heated debate about the new federal law was that the government was being more restrictive than the Supreme Court. The new legislation applies only to patients whose death is "reasonably foreseeable," while the Carter judgment contained no such limitation. The argument is superficially attractive, but it is incorrect.
To understand why, we must recall that Charter cases involve a two-step analysis. Claimants must first show that their rights have been restricted. It is then up to the government to show that the restriction is justified in a "free and democratic society."
The peculiarity of the Carter case is that it involved a complete ban on medically assisted dying. This could not be justified, said the Supreme Court, because regulation would impair patients' rights less than a complete prohibition; this trumped the second step of the analysis. Hence, when the court described the category of persons to whom its judgment would apply, it did not take into account potentially justified restrictions on the right. So Parliament was not bound to "copy and paste" categories that reflected only half of the analysis.
So what to think of the challenge brought to the new law on medically assisted dying, barely a week after its enactment? Of course, citizens are entitled to assert their rights, but we should keep in mind, as former chief justice Antonio Lamer used to say, that "the Constitution does not always guarantee the ideal."
In cases not involving a complete ban, courts usually show some degree of deference to Parliament. In other words, judges allow Parliament to choose among a range of reasonable policy options, even though they affect protected rights. In the Carter case, the court observed that "physician-assisted death involves complex issues of social policy and a number of competing societal values." Specifically, it accepted that protecting vulnerable people was a pressing objective that could justify restrictions on the Charter right to "life, liberty and security of the person," on which medically assisted dying is based.
When the challenge to the new law is heard, the government will have to say more than "we struck a balance" and will have to show precisely how its regulatory regimen protects the vulnerable. But there is every reason to believe that judges will show a significant degree of deference to the choices made by Parliament.
In deploying again the "copy and paste" argument, those behind the challenge seem to be saying that the government should never limit Charter rights. That cannot be correct; Section 1 of the Charter of Rights and Freedoms explicitly says otherwise. The government cannot be faulted for trying to craft a regimen aimed at protecting the vulnerable, a purpose validated by the court.
It may be that the government should have been more generous than what the Charter mandates. But this is a matter of politics, not law. The "copy and paste" argument is not a substitute to policy and evidence-based arguments about the merits of the law. After all, the ideal may well be achieved through a combination of constitutional law and politics.