Tom Flanagan is professor emeritus of political science and distinguished fellow at the School of Public Policy, University of Calgary.
The Supreme Court of Canada has just presented Parliament with a new challenge.
In its decision in the Carter case, the court has invalidated sections 14 and 241(b) of the Criminal Code, which together make it illegal for anyone, not just a physician, to counsel another person to suicide or to assist in carrying it out. The court, however, postponed the effect of its decision for one year to allow Parliament to craft replacement legislation. It also gave a very careful indication of what the new legislation should permit: "physician-assisted dying for competent adults who seek such assistance as a result of a grievous and irremediable medical condition that causes enduring and intolerable suffering."
Parliament found itself in a similar situation in 1988, when the Supreme Court's Morgentaler decision struck down the Criminal Code prohibition on abortion. The court did not suspend enforcement of its decision for a year, but it did give Parliament a strong nudge toward the gestational approach, making abortion readily available in the first trimester of pregnancy but progressively harder to obtain as the unborn baby came closer to birth.
In spite of this guidance, Parliament never succeeded in passing anything, so that Canada has no legislative framework at all to regulate abortion. The government of Brian Mulroney introduced legislation twice, but both attempts were defeated by an ends-against-the-middle coalition of feminists who wanted no legislation at all and social conservatives who wanted a more restrictive approach. The social conservatives thought they could get stronger legislation by holding out for something better than Mr. Mulroney's bills, but instead, they got nothing. They would have done better to rally behind a moderate compromise.
In the wake of the Carter decision, Parliament should pass legislation quickly, following the guidance about content given by the Supreme Court. Failure to legislate would, after a lapse of one year, lead to a legislative vacuum in which it would be legal for anyone to counsel and assist in suicide – spouses hoping for another marriage, children anxious to enjoy their parents' estate, teenagers bullying social outcasts.
Those who oppose assisted suicide fought the good fight in court but lost. Now they need to come together with others who may not have the same absolute moral view but are concerned about the potential for abuse of assisted suicide. As the Morgentaler aftermath showed, support for a moderate compromise is likely to be more effective than an intransigent stand on principle leading to a legislative vacuum.
The Supreme Court's one-year period of grace is not as generous as it sounds. The next general election is scheduled for Oct. 19, which means Parliament would normally be dissolved in early to mid-September. Parliament, moreover, usually takes a summer break of about two or three months.
The ideal would be for all parties to co-operate to pass legislation by June, thus not disturbing the normal timetable of summer holidays and the fixed election date. Second-best would be to sit well into the summer, using pressure of time to force passage of a bill. Worst would be to go into the election campaign in September without having passed anything at all, because the result of the election is so uncertain. Polls suggest that almost any electoral outcome is possible this time, including a Conservative minority government or a Liberal minority supported by the New Democrats.
Without a clear majority in the House of Commons, Parliament would find it difficult to act on such a contentious issue. A Liberal minority government would be particularly handicapped, facing a Conservative majority in the Senate. The issue – literally one of life and death – is too important to get caught up in the partisan manoeuvring of a minority government. We should hope that Parliament can act decisively before the election.
Tom Flanagan is a former campaign manager for conservative parties.