The Two Halves of the Glass

Much has already been written about the Supreme Court’s ruling in Carter v. Canada (Attorney General), 2015 SCC 5, which holds that, at least in some circumstances, the state cannot prohibit a person from seeking assistance in order to end his or her life. At the CBA National Magazine’s blog, Yves Faguy has up a roundup of some of the reactions; Andrew Coyne had a skeptical take on the decision in the National Post; Emmet Marfarlane had a great post for Maclean’s; and there are others.  As a result, there is no point in a full summary-and-comment post from me. Instead, I will only outline two of the many possible ways of looking at the Supreme Court’s unanimous decision ― one optimistic, the other pessimistic.

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The optimistic take on Carter is that it is an excellent illustration of one important function of judicial review of legislation, which its opponents, such as Jeremy Waldron, tend to ignore: the correction of what we might call democratic process failures. Crudely, a market failure is a situation in which, for one of a variety of reasons, the market misallocates goods and services, for example by persistently failing to satisfy demand. Just as crudely, a government failure is a situation where, again for one of a variety of reasons, government regulation creates inefficiencies, including situations where the government persistently fails to regulate in a way that would be socially desirable. Similarly, what I mean by a democratic process failure is a persistent inability of that process to produce laws that majorities would agree with and find desirable.

The existence of a democratic process failure obviates, at least to some (substantial) extent, the “counter-majoritarian difficulty” which judicial review is often said to present. The difficulty is real when the laws being invalidated actually reflect majoritarian preferences. If they do not, however, then their invalidation by courts, can force democratic institutions to act in accordance with majoritarian preferences which they previously ignored. This is, arguably, what happened in Carter. As prof. Macfarlane points out,

[d]espite strong public opinion against an absolute ban on assisted suicide, Parliament and consecutive governments have long shied away from revisiting the issue. The deeply moral nature of the debate, and the complexity in crafting rules to permit anything less than an absolute ban, no doubt played a role in this inaction. However, the inescapable truth of the matter is clear: Political cowardice has played a key part in Parliament’s intransigence, and the only way the issue was going to get back on the policy agenda was for another case to reach the Supreme Court.

Indeed the Supreme Court, in Carter, alluded to this problem, pointing out that “[b]etween 1991 and 2010, the House of Commons and its committees debated no less than six private member’s bills seeking to decriminalize assisted suicide,” [6] none of which passed.

Seen from this angle, Carter is obviously a happy story, a win for democracy as well as for individual rights. Yet the democratic process failure view raises questions which we might not have thought through very well. (Or it least I, in my ignorance, am not aware of their being addressed.) For instance, how do we know that we are dealing with a democratic process failure, rather than a mere temporary misalignment between the voters’ preferences and legislation? Can we identify, in advance, areas in which the democratic process is (most) likely to fail? (Michael Pal argues, convincingly in my view, that the law of democracy is one such area. Are there others?) Or, if we seek to identify democratic process failures ex-post rather than ex-ante, how do we do that? Is the failure of a number of bills on a topic a sign that the democratic process is malfunctioning or simply that the majority does not, in fact, support changing the law? And then,  inevitably, there is the question of whether courts are able to identify democratic process failures successfully and objectively, especially in the absence of much of a theoretical framework.

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The institutional competence question brings me to the pessimistic take on Carter. The Supreme Court’s opinion can be seen as evidence that some of the predictions I made in commenting on the Court’s decision in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, about the dangers of what Kerri Froc would later describe as “the empirical turn in Charter jurisprudence,” are coming to pass. I worried, then, about the loss of transparency and accountability that would result from requiring appellate judges, including those of the Supreme Court itself, to defer to trial-level fact-finding, including in the area of “legislative facts” consisting largely of complex social science evidence. I wrote that

[t]rial decisions, even in important constitutional cases, attract less attention than appellate ones, especially those of the Supreme Court. … Yet under the Supreme Court’s approach in Bedford, by the time a case comes up for appeal, and eventually reaches the highest ― and most visible ― court, it may well already be effectively decided. The Supreme Court can then avoid responsibility for controversial decisions, saying that “the trial judge made us do it.”

Carter is a perfect example of this tactic, which I called “judicial leading from behind.” The Supreme Court’s decision is dependent on the trial judge’s findings regarding the effects of the prohibition on assisted suicide ― not only its effects on the parties who brought the case (the traditional province of the trial judge), but also those other, more or less similarly situated, persons. It is also ― and, crucially ― dependent on the trial judge’s conclusion “that a permissive regime with properly designed and administered safeguards was capable of protecting vulnerable people from abuse and error” [105]. These conclusions, in turn, are dependent on the trial judge’s study of the evidence put before her. But the Supreme Court barely refers to that evidence. It merely restates and endorses the trial judges findings, with little if any explanation of what evidence they are based on or why they are correct. As a result, the opinion reads as a long series of assertions more than an argument for the result it reaches.

Now I do not mean to suggest that the Court did not carefully consider the trial judge’s conclusions. My point is, to a considerable extent, about transparency. I am happy to assume that the Court did its work, but others may not be, and neither they nor I should have to take that on faith. And then, there is the question of whether the trial judge’s conclusions are, in fact, right. Again, I do not mean to suggest that they are not, but others ― Mr. Coyne, for instance ― disagree. Yet under the Supreme Court’s deferential approach, these conclusions could not be disturbed unless they are based on a “palpable and overriding error,” a high standard to meet in any case, and perhaps an impossible one when the evidence consists of inherently uncertain social science.

As I said in commenting on Bedford, the attraction of “leading from behind” is that it allows the Supreme Court to make its decisions look inevitable and unassailable. It seems to be an effective short-term tactic. Yet it is questionable as a long-term strategy. The less transparent judicial review appears to be; the more it looks like a dictation of the judges’ views rather than a rational argument for them; the less legitimate it will become. The Supreme Court is hoping that we will trust it indefinitely. But trust has to be earned and preserved. It cannot be taken for granted.

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So there you have it, a cautiously happy view of Carter and a brooding one. You can pick whatever half of the glass that most appeals to you. Or maybe even both.

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