The judiciary is usually the quiet branch of government, the one that goes about its work under the radar.
But earlier this month, the Supreme Court of Canada jammed the radar. With its historic Carter decision, the Court boldly recognized a constitutionally-protected right to physician-assisted suicide under certain circumstances. With one stroke, it jettisoned an old law, swept aside decades of judicial precedent, (rightly or wrongly) settled a longstanding moral-legal debate and lobbed a political hot potato at federal party leaders early in an election year.
Generally, the Court decides matters that, while unquestionably of national importance, do not penetrate the consciousness of the average Canadian. And in the past, on those occasions where the Court has found itself deciding an issue that attracts broad attention, it has tended to narrow the scope of its rulings to the extent possible. In fact, the conventional wisdom about Chief Justice Beverly McLachlin’s Supreme Court has always been that it will take pains to avoid confrontations with Parliament.
But over the last two years, the McLachlin Court has turned that conventional wisdom completely on its head.
Carter is only the latest in a string of instances over the last two years in which the Court has butted heads with the Harper government.
- In 2013, the Court ruled against the government by striking down Criminal Code provisions prohibiting brothels, streetwalking and living off the avails of prostitution, over the government’s strong objections. The decision sent Team Harper scrambling to draft a new law that would meet constitutional muster.
- In 2014, the Court ruled against the Harper government again in the Senate reference case. It flatly rejected the government’s argument that Parliament could unilaterally impose term limits on senators, establish consultative elections or abolish the Senate entirely. By requiring substantial approval from the provinces for all of these measures, the Court effectively killed Mr. Harper’s efforts to reform the Upper Chamber.
- And in 2014, by a 6-1 majority, the Court ruled that Mr. Harper’s handpicked nominee to the Supreme Court – Federal Court of Appeal Justice Marc Nadon – was ineligible to sit. It found that Judge Nadon did not meet the special criteria for Supreme Court candidates appointed from Quebec.
The unprecedented Nadon ruling provoked an equally unprecedented response from the government. After the decision was released, Mr. Harper and Justice Minister Peter MacKay both suggested that the Chief Justice had behaved improperly by trying to flag potential legal issues with the appointment of Judge Nadon before he had been officially selected. This in turn provoked yet another unprecedented response, this time from the Chief Justice, who defended her actions.
— CBC Toronto (@CBCToronto) February 6, 2015
It was against this tense background that Carter was decided. In its decision, the Court did not equivocate on the core question or narrow the scope of the ruling. It went farther legally, and spoke in more strident moral terms, than most court-watchers expected. While many did expect the Court to open the door to physician-assisted suicide slightly, few expected it to fling open the door as widely as it did. The Justices could have prescribed stricter limits on the circumstances where physician-assisted suicide will be legal. For example, they could have limited the right only to patients suffering from terminal illnesses, but they instead extended the right to all patients who are, “competent adults suffering intolerably.” And rather than duck the moral question at the centre of the case, the Court took a firm stand, characterizing the current ban on physician-assisted suicide as, “cruel.”
So where does this leave us?
First, the state of the law around physician-assisted suicide itself is in now in doubt. There is no question that the previous legal regime has been irrevocably changed. But it remains an open question what, specifically, the new law will entail. The government has less than a year to figure it out.
There are also clear political implications. The Court gave Parliament one year to rewrite the Criminal Code before the existing provision becomes invalid. Will the Prime Minister attempt to sweep the issue under the rug until after the October 19 election date? Will the opposition parties raise the issue before or during the campaign?
And what does this portend for the future of the relationship between the Court and the government? Taking a step back, it is impossible to overstate the significance of the war of words that followed the Nadon decision. Integrity is currency for judges; it is the sine qua non of their legitimacy as unelected decision makers. While governments can, and often do, criticize judicial decisions on their merits, there is no reported instance in the modern history of the Court where a sitting Prime Minister has publicly questioned the integrity of a sitting Supreme Court Justice, let alone the Chief Justice. This episode has arguably rewritten the unwritten rules of engagement between the executive and judicial branches of government. And, following Carter, it remains to be seen how this Prime Minister, further exasperated by the ruling, will respond next. Recall that the Court is set to rule this year on the constitutionality of key parts of the government’s tough-on-crime agenda. This will be a relationship to watch over the next year.
Finally, and perhaps most importantly, Carter reminds us of the substantial impact that the Court has on policy in Canada. Judges usually try to underplay this fact: they couch their written reasons in legal language, justify their decisions with judicial doctrines and precedents and do not comment on issues in the news. But the fact is that in the process of deciding individual cases between individual litigants, and in their role as principal interpreters of the Constitution in the post-Charter era, judges sketch the boundaries within which policies can be made in Canada, and they can sketch those boundaries as narrowly as they choose. In this sense, judges absolutely do make policy, albeit under the radar, and are implacable players in the political process.
At very least, Carter shows that while the judiciary may be the quiet branch of government, when it chooses to, it can speak very loudly indeed.