Why’d You Do This?

Giving Parliament more time on assisted suicide, the Supreme Court fails to explain itself

On Friday, the Supreme Court issued its ruling on the federal government’s request for an extension of the suspension of the declaration of unconstitutionality of the Criminal Code’s provisions that have the effect of making assisted suicide unlawful in all circumstances. The ruling, Carter v. Canada (Attorney General), 2016 SCC 4 (which I suppose will be known as Carter II, to distinguish it from the merits decision, Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331) extends the suspension for another four months ― instead of the six requested by the government. Emmett Macfarlane has a scathing op-ed in the Globe and Mail, arguing, convincingly in my view, that the Supreme Court’s decision is unprincipled and illogical. I have nothing much to add to prof. Macfarlane’s comments regarding the substance of the decision. I do, however, want to say something about procedure and form.

The Supreme Court’s decision-making process was hurried. The oral argument took place last Monday, and the decision came out on the Friday afternoon. Why the rush? The original suspension of the declaration of unconstitutionality had three more weeks to run. It is nice of the Court not to wait until the last possible moment ― but did it have to issue its decision with less than an hour’s notice on a Friday afternoon? I won’t speculate as to the reasons why the Court did this, but whole business looks a bit shambolic.

As for form, my complaint is that the Supreme Court provides no justification for its conclusions. The Court agrees, unanimously, to extend the suspension of the declaration of unconstitutionality, but the sum total of its explanation is this:

In this case, the length of the interruption of work on a legislative response to the Court’s decision due to a federal election constitutes [an extraordinary] circumstance. Parliament was dissolved on August 2, 2015 and officially resumed on December 3 of that year. This four-month delay justifies granting an extension of the suspension of the declaration of invalidity, but only for four months. [2]

The invocation of an election as effectively a time-stopper for calculating the delay Parliament has to respond to the Court’s ruling is unprecedented ― and unexplained. Why did the Court never mention the matter earlier? And how much sense does it make to think that a day on which Parliament was not able to sit to consider a response to the Court’s ruling must necessarily be recouped later on? After all, it’s not as if Parliament had spent every day on which it would have been able to do so actually doing it!

Beyond that, the Court simply ignored the issues that were debated at oral argument (about which I wrote here). There was, for instance, a good deal of discussion about whether a comprehensive legislative framework dealing with assisted suicide is necessary to avoid creating paralyzing uncertainty for the medical profession and other stakeholders. The Court says nothing at all about this in its opinion. Nor does the Court even mention another issue that got a good deal of attention on Monday ― the role of the provinces in devising the regulatory framework for assisted suicide. And the Court keeps ignoring broader issues about when, if ever, suspended declarations of unconstitutionality are appropriate, and how much explanation should be given when they are granted. (Though if this ruling is anything to go by, the Court still believes that the answer to the latter question is “none whatsoever.”)

When I commented about the oral argument, I expressed the hope that the Supreme Court’s “ruling, whatever its conclusion, [would be] mindful of the issues that it will inevitably raise and that go well beyond just this case.” My hope was not fulfilled. Prof. Macfarlane says that the Supreme Court “needs to reconsider its use of suspended declarations.” I have in the past been more willing than some others to defend the Court’s use of this remedial device. But if the Supreme Court cannot exercise this power it has granted itself in the way any judicial power ought to be exercised ― that is, in a transparent and rule-bound fashion ― then it should renounce it altogether.