National Affairs Rory Leishman

National Affairs Rory Leishman

Time and again over the past 30 years, the Supreme Court of Canada has proceeded under cover of the Canadian Charter of Rights and Freedoms to violate its own precedents, amend the Constitution, and overturn long-standing laws duly enacted by elected representatives of the people within the jurisdiction of Parliament and the provincial legislatures.

Now with a unanimous judgment in Canada v. EF on May 17, the Alberta Court of Appeal has taken the process even further, by repudiating the Trudeau government’s proposed legislation on assisted suicide and euthanasia even while the bill was still under debate in Parliament.

At issue in EF is the plight of a 58-year-old woman afflicted with “severe conversion disorder,” which is a disease of the mind. The symptoms in her case include involuntary muscle spasms that have rendered her immobile with severe pain, recurrent migraines, loss of appetite, lack of sleep and virtual blindness. Nonetheless, based on the evidence of EF’s psychiatrists, the Appeal Court concluded that EF is “not suffering from depression and is able to and is voluntarily consenting” to physician-assisted suicide.

Sections 14 and 241(b) of the Criminal Code clearly prohibit everyone, including physicians and nurses, from assisting any person to commit suicide. Prior to last year Parliament repeatedly reaffirmed its support for this law and as recently as 1993, even the Supreme Court of Canada upheld the constitutional validity of this blanket ban on assisting in a suicide.

Nonetheless, in a complete turnaround last year in Carter, this same Court suddenly and arbitrarily concluded that both sections 14 and 241(b) \“are void insofar as they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”

Did the Parliament of Canada object to this brazen usurpation of legislative power by our robed dictators on the Supreme Court of Canada? Not at all. Instead, the Trudeau Liberals rammed a bill through the House of Commons that would allow “physician-assisted dying” – the latest euphemism for euthanasia and physician-assisted suicide – in the case of an adult patient who gives “informed consent to receive medical assistance in dying” and has “a grievous and irremediable medical condition” that causes the patient “enduring suffering” that is intolerable to the patient, and is so devastating that “their natural death has become reasonably foreseeable.”

During debate on Bill C-14, Justice Minister Jody Wilson-Raybould explained to the House: “bearing in mind that medical assistance in dying can pose real risks and equally we do not wish to promote premature death as a solution for all medical suffering, these criteria may not allow eligibility for some circumstances, such as a person with a major physical disability who is otherwise in good health, or a person who solely suffers from mental illness. These conditions, in absence of additional medical circumstances, may not be associated with a reasonably foreseeable death.”

According to the Alberta Court of Appeal, EF was suffering solely from a mental illness and her natural death was in no way “reasonably foreseeable.” Under the terms of the Trudeau government’s bill, she clearly would not qualify for physician-assisted suicide. Regardless, the Alberta Court of Appeal held that she is eligible for physician-assisted dying under the broader terms decreed by the Supreme Court of Canada in Carter.

It could take years of litigation at huge expense to sort out who is right about the scope of the Carter decision – Wilson-Raybould or the Alberta Court of Appeal?

Correspondingly, in Bedford, 2013, the Supreme Court of Canada struck down longstanding legislative provisions on prostitution in the Criminal Code, which this Court had upheld in 1990. In 2014, Parliament responded by enacting a new set of laws on prostitution, yet today it is still far from certain that these new laws will pass muster with the Supreme Court of Canada, if they are challenged.

What can be done to mitigate the legal chaos stemming from the usurpation of legislative powers by the Supreme Court of Canada? Conor Gearty, a distinguished professor of human rights law at the London School of Economics, has suggested that the human rights committee of Parliament in England should try to revive some legal certainty, by periodically summoning senior judges to explain in public the “general policy developments” they have imposed, including “the cost of particular decisions, or the rationale behind some particularly controversial declaration of incompatibility.”

Senior judges in both Canada and Britain should welcome such an opportunity for a continuing dialogue with Parliament on the precise import of arbitrary judicial legislative decrees. Instead, British judges have reacted with horror to the proposal. Gearty relates: “I was delighted to hear my views described as ‘insane’ by a retired judge on BBC radio.”

Of course, there should be no need for the kind of radical change envisioned by Gearty and others. Contemporary judges on the Supreme Court of Canada could readily revive genuine democracy, constitutional government, and the rule of law in Canada by emulating their distinguished predecessors who upheld the fundamental separation of legislative and judicial powers.