Brother, can you spare 6-months? Is this what Charter ‘dialogue theory’ has become?

 

Now that the Supreme Court of Canada (SCC) has ruled on the request by the Trudeau government to seek a 6-month extension to comply with Carter v. Canada (Carter II), and the Trudeau government has accepted the court order without reservation, what does the ruling say about the SCC and the Trudeau government, as it relates to the Charter of Rights?

I’ll start by saying that I largely agree with the recent insightful commentary provided by Michael Plaxton in Policy Options. My comments will focus on other issues within the broader context of the judicialization of politics and the Charter of Rights, such as:

  • The justification provided by the SCC for partially granting the request for a 6-month extension;
  • What the ruling says about the state of Charter dialogue theory;
  • Whether Parliament can pass amendments to the Criminal Code within four months to comply with Carter II;
  • Whether the 9 provincial governments excluding Quebec can agree to regulations governing physician-assisted dying by June 6, 2016.

A review of the order is necessary before placing the January 15, 2016 judgement by the SCC in a broader context:

  • The SCC granted the motion in part. The initial one-year suspended declaration of unconstitutionality that was set to expire on February 6, 2016 has been extended for an additional 4 months, instead of the 6 months requested by the Trudeau government;
  • The four-month extension does not apply to those individuals outside of Quebec that wish to exercise the right to physician-assisted dying recognized by the Court in Carter. At paragraph 7, the SCC created an interim process for a ‘competent adult person’ that requires applying to a superior court for relief in accordance with the principles established by the SCC in Carter v. Canada:

“s.241 (b) and s. 14 of the Criminal Code 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.”(at para. 127)

Elections Matter (when they matter)

There are a number of problematic features with the Court’s reasons to simply grant a 4-month extension to the Carter remedy, and, as a political scientist, the discussions of the 2015 Federal Election and resulting delay that prohibited Parliament from fashioning a legislative response to Carter v. Canada are the most peculiar.

At paragraph 2, the Court notes that the initial remedy of a suspended declaration of unconstitutionality is an ‘extraordinary step’ and to ‘extend such a suspension is even more problematic.’ Further, ‘[t]he burden on the Attorney General who seeks an extension of a suspension of a declaration of unconstitutionality is heavy.’

The Court considered the interruption of the legislative process caused by the 4-month 2015 Federal Election as constituting exceptional circumstances to justify granting an additional exemption.

This leads to an important question – if the Court was willing to factor in the length of a federal election into what is simply an extension for Parliament to draft a legislative response to Carter while simultaneously exempting Quebec’s Act respecting end-of-life-care from this extension and effectively declaring sections 241(b) and 14 of the Criminal Code unconstitutional for ‘competent adult persons’ that are granted relief by a superior court, why not simply grant Parliament’s initial request of 6 months?

The reliance on the period from dissolution of Parliament on August 4, 2015 to its summoning on December 3, 2015 by the Governor General is a particularly puzzling aspect of the Court’s decision in Carter II, and it suggests the SCC misunderstands the legislative process that unfolds between dissolution of one parliament and the summoning of the next parliament by the Governor General.

When an election is called, parliamentary committees are dissolved until Parliament is summoned and the House of Commons reconstitutes them following the election of the Speaker and the Speech from the Throne.

In the case of the Speaker of the House of Commons, the House elected the current incumbent on December 3, 2015. The Governor General read the Speech from the Throne in the Senate on the same day. More importantly, December 3, 2015 is the date the SCC determined that Parliament was able to resume the legislative process, and is the sole justification provided for granting a 4-month extension instead of the 6-months requested by the Trudeau government.

Given that the Trudeau government decided to establish a Special Joint Committee on Physician-Assisted-Dying to receive and review the Report of the Expert Panel on Options for a Legislative Response to Carter v. Canada created by the former Harper government, it is important to ask the following questions:

  • When was the Special Joint Committee on Physician-Assisted-Dying constituted and in a position to begin fashioning a legislative response to Carter v. Canada?
  • When did the Special Joint Committee on Physician-Assisted-Dying receive the Report of the Expert Panel on Options for a Legislative Response to Carter v. Canada? Given that this report is essential to the work of the Special Joint Committee, even if the committee is constituted, it cannot begin its work until the report is received.

When are parliamentary committees ‘re-constituted’ and able to resume work?

The SCC was wrong to assume that the summoning of Parliament by the Governor General on December 3, 2015 allowed Parliament to turn its attention to the legislative remedy in response to Carter v. Canada.

As I previously stated, the summoning of Parliament on December 3, 2015 does not see committee business resume. First, ‘standing’ or permanent parliamentary committees must be reconstituted from a previous session of Parliament, and this occurs after the Speaker has been elected and the Governor General has read the Speech from the Throne.

However, reconstituting a committee has both a formal dimension and a substantive component, which the SCC did not factor into its justification for granting a four-month extension. In the case of the Special Joint Committee on Physician-Assisted-Dying, this committee was not reconstituted, as it did not exist in a previous session of Parliament, but was constituted as an adhoc committee after the Speech from the Throne was dispensed in early December. At this point, the Special Joint Committee was created, but it was not substantively constituted, as it could not meet until several procedural issues were dispensed with.

The first order of business of any parliamentary committee – standing or adhoc – is the election of a chair. In the case of the Special Joint Committee on Physician-Assisted-Dying, it has joint chairs – one from the House of Commons, and one from the Senate. The election of the joint chairs occurred at the first meeting on the Special Joint Committee, and this took place on January 18, 2016.

It was during the afternoon session that the Special Joint Committee first began work on the legislative response to Carter v. Canada, presumably when it received the Report of the Expert Panel on Options for a Legislative Response to Carter v. Canada. While the Minister of Justice received this report on December 15, 2015, the Minister of Justice and Minister of Health did not release the report to the public (and presumably to the Special Joint Committee) until January 18, 2016.

Whether or not the Special Joint Committee received the report before January 18, 2016 is irrelevant, as the legislative response to Carter v. Canada could not begin until the committee was constituted and able to conduct meetings, which occurred with the election of joint chairs on January 18, 2016. Indeed, the afternoon session saw briefings from the Department of Justice, which discussed the complexity of coordinating a provincial regulatory framework governing physician-assisted dying within the 4-month extension.

The delay caused by the 2015 election (4 months) and the period between the summoning of Parliament (December 3, 2015) to the election of Joint Chairs for the Special Joint Committee on Physician-Assisted-Dying (January 18, 2016) results in a further delay of 6 weeks, for a total delay of 5.5 months, and not the 4 months recognized by the SCC. This is only two-weeks shy of the 6-months requested by the Trudeau government.

What does this say about the rationale delivered by the Supreme Court of Canada to grant a 4-month extension instead of the requested 6-month extension? Principally, that it rests on a misunderstanding of Parliament, the legislative process, and the workings of parliamentary committees that puts into question its justification for granting a 4 month extension.

The request by the Trudeau government was reasonable because it – and not the Supreme Court of Canada – understands the subtleties of the legislative process. In such matters, the SCC should defer to the institutional competency of Parliament when the ministry makes an unusual request for an additional extension on a section 24(1) remedy, as in the case of Carter v. Canada. In this respect, the Court was wrong to deny the requested 6-months extension by the Trudeau government. Instead of acting with the Wisdom of Solomon, the Supreme Court of Canada acted as if it had the Wisdom of Solomon, in relation to Parliament and the legislative process.

Get Carter to the Provinces and Territories

Fashioning a legislative response to Carter has two dimensions – one that is directly under federal control (the amendments to the Criminal Code), which is straightforward in the House of Commons but not so in the Senate, and one that is directly under provincial control (responsibility for health care), which is rather complicated. While the federal government surely favours a national approach to physician-assisted-dying, as does the Canadian Medical Association, it requires the provincial governments to agree to this national framework. The provision of this medical service to ‘competent adult persons’ will require provincial acceptance, agreement, and most importantly, implementation.

Passing amendments to the Criminal Code in the House of Commons

Turning to the first part of the legislative response, a four-month time frame is most likely sufficient to draft amendments to the Criminal Code. At a minimum, the House of Commons can simply accept the exemptions outlined by the Court at para. 127 in Carter and recommend these amendments to the Senate.

Such exemptions in the Criminal Code could be fast-tracked at the agreement of the House Leaders of the three parliamentary parties. However, this would require the Trudeau government to invoke party discipline on this issue, which may be problematic, as it is a conscience issue.

Given that Liberal leader Justin Trudeau has required all Liberal MPs to be pro-choice on the issue of abortion, the right-to-die may no longer be considered a conscience issue by the Trudeau government, and a whipped-vote would guarantee its passage in the House of Commons but not the Senate.

Trudeau and the Senate – where bold ‘reform’ meets legislative reality

Here is where the ability of the Trudeau government to pass amendments to the Criminal Code gets complicated, and may prevent meeting the June 6, 2016 deadline. As I argued in an earlier piece – The Senate after the Election: How will the NDP and the Liberals react? – Prime Minister Justin Trudeau leads the first government in Canadian history that lacks a government caucus in the Upper House of Parliament. While in opposition, Liberal leader Justin Trudeau expelled all Senators from the Liberal caucus, and committed his party to a non-partisan approach to the Upper House.

At the present time, it is unclear whether the Liberal party has appointed an individual to serve as Leader of the Government in the Senate – Senator James S. Cowan is designated as ‘Leader of the Senate Liberals’ and it is unclear whether he also serves as Leader of the Government in the Senate.

Why is this relevant? There is no guarantee that the Senate will pass amendments to the Criminal Code in time to meet the June 6, 2016 deadline, as the Trudeau government has absolutely no political leverage with the Senate Liberal Caucus. Even if the Senate Liberal Caucus agrees to support the amendments to the Criminal Code, they are in the minority in the Senate, as the Conservative Party of Canada has a majority of the appointed members. And finally, once the Independent Advisory Board for Senate Appointments fills the 22 current vacancies with non-partisan appointments, the passage of legislation enters a new, unknown phase. Sunny ways can quickly give way to stormy seas, as the Trudeau government may soon learn with an independent, non-partisan Senate.

Coordinating with Provincial and Territorial Ministers of Health

Even if Parliament – the House of Commons and the Senate – passes amendments to the Criminal Code in time, what is less apparent is whether federal-provincial-territorial negotiations with the Canadian Medical Association and other provincial medical associations can produce a regulatory framework to govern physician-assisted dying. Here too, a legislative compromise presents itself in the interim until a permanent regulatory framework can be adopted – the provincial governments, in coordination with the federal government, can simply adopt in the interim Quebec’s Bill 52, Act respecting end-of-life care, and the guidelines created by Quebec’s College of Physicians to regulate physician- assisted dying.

If each province has to pass regulations governing physician-assisted dying by June 6, 2016, even if this is done as orders-in-council instead of legislation, it may prove very difficult to meet the 4-month extension granted by the SCC.

Why Morgentaler is not instructive

In some ways, the issues in Carter and Morgentaler are very similar, as both involved provisions of the Criminal Code that were declared unconstitutional by the SCC as a violation of section 7 of the Charter. In Morgentaler, the SCC declared unconstitutional Criminal Code provisions that regulated abortion, and immediately declared them to be ‘of no force or effect’ under section 52 of the Constitution Act, 1982.

I would suggest this is where the similarity ends, and why Morgentaler is not instructive for the legislative approach to Carter. The impact of the immediate invalidation of Criminal Code provisions in Morgentaler was rather limited – a provincial regulatory framework existed to govern access to abortion as a medical service, and in the case of Dr. Henry Morgentaler and his private abortion centres outside of Quebec, it allowed these centres to operate free from criminal prosecution.

In 1976, the Attorney General of Quebec decided not to enforce provisions of the Criminal Code governing abortion, and this became the approach of all subsequent Quebec government until the Morgentaler decision in 1988. As such, the invalidation of the Criminal Code restrictions on abortion occurred with a regulatory framework in place.

The declaration by the SCC that the Criminal Code provisions prohibiting physician-assisted dying are unconstitutional occurred, with the exception of Quebec, in the absence of a regulatory framework to provide this medical service to ‘competent adult person’ as well as the absence of a policy framework informing physicians how to provide this medical service. While the Canadian Medical Association has created a set of guidelines in regard to physician-assisted dying, they have yet to be adopted by the 9 provinces and 3 territorial governments outside of Quebec.

As I have argued, there are real challenges with introducing legislation at the federal, provincial and territorial levels in response to Carter. The SCC in Carter v. Canada and Carter II viewed the legislative response as rather simple – the need to amend the Criminal Code to comply with paragraph 127 of the initial decision. But this is not as straightforward as it appears, and perhaps unlikely to be achieved even with an additional 6 months, as requested by the Trudeau government.

While the SCC overlooked the federal-provincial-territorial dimension to Carter’s legislative response, I would suggest the Trudeau government minimized the impact of its stance on the Senate when it considered 6 months as a sufficient time frame to pass legislation through both houses of Parliament: one that it controls as a majority government, and one that it has limited or no influence over.

The Day the Dialogue Degenerated

 In his evaluation of Sauvé v. Canada (Sauvé II) whereby the SCC invalidated Parliament’s attempt to amend the Canada Elections Act to comply with the 1993 Sauvé decision (Sauvé I), Christopher P. Manfredi concluded in a Osgoode Hall Law Journal article that the Court’s rejection of the legislative response to Sauvé I represents ‘the day the dialogue died’.

In this conclusion, I will pay tribute to Manfredi’s important analysis of Sauvé II by considering whether Carter II represents the day the dialogue degenerated. In this respect, I do not believe that dialogue is dead, but simply that the SCC and the Trudeau government have engaged in a form of dialogue that does not properly respect the institutional roles and capacities of each that are an integral part of the judicialization of politics under the Charter of Rights.

In one important regard, Carter II is an example of Charter dialogue, as the SCC and the Trudeau government returned to debate the constitutional parameters of physician-assisted dying, but in a narrow capacity, as this dialogue centred on the remedy provided by the Court under section 24(1) of the Charter.

However, Carter II represents a decline in Charter dialogue for a number of reasons. As I argued in Carter v. Canada and why the Constitution – and Parliament – would benefit from the occasional use of section 33, the Charter’s override provision, the Trudeau government should have considered using the notwithstanding clause, as it was simply seeking an extension to comply with the section 7 issues raised by the Court in Carter I. This would facilitate Charter dialogue allocated around institutional capacity, as the Trudeau government – and not the SCC – is best positioned to decide on the length of time needed to fashion a legislative response to an issue as complex and federal as Carter I.

For Charter dialogue theory to properly function, the SCC and the Trudeau government must recognize and respect their individual institutional capacity, which neither actor did in Carter II.

By requesting an extension to the Carter remedy, the Trudeau government adopted an unnecessary posture of deference to the Supreme Court of Canada. By questioning the request for 6 months, and using the period between dissolution of a parliament and the summoning of a new parliament by the Governor General as the basis of its decision, the SCC overestimated its capacity to understand the legislative process. For these reasons, Carter II has further undermined Charter dialogue theory as a framework to understand the judicialization of politics.

 

 

 

 

 

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