No need to override the Charter to pass a new assisted suicide law
The court ruled the old law exceeded Parliament’s purpose, but only on its own narrow interpretation of it. So restate its purpose, more clearly
Earlier this year, Canada’s Supreme Court struck down the Criminal Code prohibition on assisted suicide in its landmark Carter v Canada ruling. Parliament’s only option now, many believe, is either to implement a circumscribed “right to die” or invoke the Charter’s notwithstanding clause. But the actual legal reasoning underlying the court’s invalidation of the law makes possible another path.
The Supreme Court ruled that the objective of Canada’s existing prohibition on aiding or abetting suicide (part of the Criminal Code since its inception in 1892) is not to protect life or even to prevent suicide, but merely to “protect vulnerable people from being induced to commit suicide in a moment of weakness.” On this objective rested the fate of the law.
The issue was not whether Canadians have a right to assisted suicide. The issue was more specific and technical: whether the existing prohibition violates Section 7 of the Charter of Rights and Freedoms by depriving the plaintiff of her right to life, liberty, or security of the person in a manner that is not in accordance with the principles of fundamental justice. If a law does not violate any principles of fundamental justice, it does not violate Section 7.
The court itself established the principle of fundamental justice that a law cannot be “overbroad” two years after it upheld the assisted-suicide prohibition in Rodriguez (1993). A law is overbroad if it denies the rights of some individuals in a way that bears no relation to the law’s (Parliament’s) objective.
Since, in the court’s opinion in Carter, the law’s objective was only to protect vulnerable people from being induced to commit suicide, but the law also prevented non-vulnerable people from obtaining assisted suicide, it followed that the law was overbroad and therefore invalid.
If the constitutional valid- ity of a law depends on how a judge frames its objective, surely a judge must do so according to some legal principle or rule? Or is it true, as Peter Hogg, Canada’s pre-eminent constitutional law scholar has observed, that “a judge who disapproves of a law will always be able to find that it is overbroad”?
The court in Carter noted that “the object of the prohibition should be confined to measures directly targeted by the law,” citing Bedford v Canada, its 2013 decision invalidating the Criminal Code prohibitions against prostitution-related activity. The attorney general argued in Bedford that the objective of the prostitution provisions was to suppress prostitution generally, even though prostitution itself was legal. The court disagreed, saying of the bawdyhouse provision, for example: “On its face, the provision is only directed at in-call prostitution, (not) at deterring prostitution generally.”
If there was a legal principle at work in Bedford, the court strays from it strikingly in Carter, in yet another illustration of Hogg’s maxim.
On its face, the blanket prohibition against aiding or abetting suicide applies regardless of circumstances or persons involved. Anyone who aids or abets another’s suicide commits a crime regardless of who (if anyone) influenced the victim’s decision to die. On its face, the prohibition is not concerned with the autonomy, capacity or vulnerability of the person wishing to kill himself, but with the public wrong of actively helping him carry out that wish.
As the attorney general explained, the prohibition “is based not on a failure to take into account the needs and circumstances of individuals with serious disabilities, but on the recognition that assisted suicide and euthanasia are inherently social acts … fundamentally different than the act of suicide.”
The court, however, declared that the law “is not directed at preserving life, or even at preventing suicide (because) attempted suicide is no longer a crime”— thus dis- regarding that assisted suicide is a social act, that attempted suicide was actually decriminalized to help prevent suicide, and that the conduct targeted by the law is any aiding or abetting of suicide.
Despite its questionable reasoning, it is perhaps not surprising that the court framed the objective in a way that favoured the plaintiff. Judges have been known to engage in outcome-oriented reasoning. But the validity of democratically enacted statutes should not depend on judicial preferences.
So here is how Parliament can and should respond. Reenact a prohibition on aiding or abetting suicide with a clear statement of its objective included in the law itself, in line with what the attorney general argued was the existing law’s actual, if unstated, objective — namely, to prohibit the active participation in the suicide of another person as being, to quote Justice John Sopinka’s ruling in Rodriguez, “intrinsically morally and legally wrong.”
Altering the framework by which judges apply Section 7 of the Charter might require a constitutional amendment, but all Parliament needs to do in response to Carter is amend the Criminal Code. Where a law’s stated purpose and legal effect align, a court cannot credibly find that the law’s “true purpose” is something other than its stated purpose. Stating the objective in the law itself may save it from invalidation by deviceful applications of the overbreadth principle.
Only Parliament can enact criminal law. In doing so, Parliament is supposed to channel the collective wisdom of Canadians from various walks of life. Legal expertise is not equivalent to moral wisdom, or we might grant criminal law-making power to judges or law societies instead.
Parliament has repeatedly rejected bills to legalize assisted suicide, most recently by a vote of 228 to 59 (Bill C-384, 2010). If Parliament is suddenly ready to concede that it has been so wrong for so long, what does it tell us about the state of Canada’s legislative branch?