Emmett Macfarlane is an assistant professor of political science at the University of Waterloo. He tweets @EmmMacfarlane.
The Supreme Court of Canada has granted the federal government an extension on doctor-assisted dying. In its decision to strike down the prohibition on assisted suicide last February, the court on Friday chose to "suspend" the effects of its decision for one year, to give Parliament the time it needs to replace the impugned criminal law.
Rather than pass a new criminal law after the February, 2015, ruling, Parliament sat on its hands and then dissolved for the fall election campaign; the new Liberal government used this as a basis for seeking more time. Meanwhile, the new government did not even announce which MPs would be part on the parliamentary committee examining the issue until earlier this week. It seems foot dragging is a bipartisan sport.
The effect of the court's latest decision is to further delay access to medical aid in dying, something the justices themselves ruled last year was a fundamental Charter right. The innovation of suspended declarations of invalidity were originally meant to be used only in exceptional circumstances to avoid doing more harm than good by creating vacuums in law when striking down legislative provisions under the Charter.
In the context of assisted dying, however, a new criminal law is unnecessary. For one thing, the top court's 2015 decision articulated the baseline requirements for access. The law cannot deny assisted suicide to competent adults who clearly consent and who suffer from a grievous and irremediable medical condition causing intolerable suffering to the individual. Issues of consent are not new to the medical profession, and cases where consent is not clear are subject to other criminal law provisions, including homicide. More significantly, the matter is now largely one of medical consent that ought to be regulated at the provincial level under health care.
The irony is that Friday's decision granting the extension demonstrates both of these facts rather spectacularly, even as the justices seemed to miss them: In addition to the extension, a majority of the court provided Quebec with an exemption in light of Quebec's new legislation regulating medical aid in dying. So residents of Quebec have access to a right those in the rest of Canada do not, albeit temporarily, as individuals in other provinces must apply to a court for a personal exemption to seek access (which may or may not be granted).
Adding insult to injury, the majority of the top court cautions us that this exemption "should not be taken as expressing any view as to the validity" of Quebec's law. Got that? The suspension means – from a legal point of view – that old criminal law remains in place. Quebec's law should therefore be considered invalid, as it conflicts with the criminal law, except for the fact a Quebec court recently upheld the law because the Supreme Court had struck down the criminal law. The Supreme Court itself has not had its say on this, but by granting the exemption to Quebec, the court undermines the very basis for the suspended declaration and its extension, which are premised on the idea that a criminal law is necessary in the first place! Someone pass the salt for this pretzel.
The court added even more fuel to this fire by granting the federal government only four additional months, based on the time period Parliament was shut down for the election. Yet the government's claim is that assisted dying legislation is inherently complex and that it requires both a "comprehensive" regime and one where all of the provinces buy in. While federal-provincial co-operation to develop a new comprehensive regime might conceivably happen in this short of time span, it certainly rings hollow for the Court to accept the premise of complexity but then provide so little time.
There is one more irony worth pointing out: Had the court not suspended the effects of its 2015 decision in the first place, we almost certainly would already have a new criminal law in place by now. The previous Conservative government would not have sat idly by in the face of a complete absence of criminal law on this issue, and most likely would have enacted a new criminal law as narrowly as possible, in conformity with the baseline laid out by the court. The court clearly needs to reconsider its use of suspended declarations.
In the meantime, the court has produced one of its most questionable decisions in recent history, managing to misunderstand the policy implications of its original decision, disregard – indeed, get backward – the role of the provinces and the division of powers itself in the context of assisted dying regulation, and, most disconcertingly, paying nothing more than lip service to the rights at stake.