Let Parliament deliberate

“Progressives” who dismissed Conservative complaints about the growing boldness of Canada’s activist Supreme Court may want to ponder the court’s latest assertion of its right to appropriate the role of Canada’s elected legislators. On Friday, the court rejected a request from the new Liberal government for a six- month extension of the 12- month deadline to craft new legislation on assisted dying. The court gave it four months, instead.

The case results from an earlier court ruling. Last February, it struck down a law banning euthanasia, deeming it incompatible with the Charter of Rights. Rather than simply reject the law and leave it to Parliament to deal with the implications, it invoked a suspended declaration of invalidity, suspending the ruling to allow time to produce new legislation. In this case, it granted the government one year to come up with a new law that’s compatible with the charter.

Under ordinary circumstances, a year might have been adequate. But last year was not ordinary: an election was to be held in the fall; all three major parties were deeply involved in preparations for the campaign, which was called in August and was one of the longest in history. The vote ended in the former Conservative government’s defeat and the introduction of a new Liberal government under an untried leader, who naturally required time to find his feet. A full six months of the court’s 12-month deadline was thus lost to electoral matters. It would have been highly contentious for the Tories to produce a quick new law on such a vital matter in the fevered months before an election. It would be unreasonable to expect their Liberal replacements to do so within weeks of coming to office.

The Liberal request for an extra six months was thus quite reasonable. Eutha- nasia, after all, is a difficult issue fraught with moral concerns. Further, as provinces maintain jurisdiction over health care, whatever federal law the government produces will need to mesh with provincial practices. Quebec’s own end-of-life law came into effect in December.

Rather than give the Liberals the time they said they needed, the court chose only to grant the four months lost during the election. To add to the peculiarity of its judgment, it ruled that Quebec will be granted an exception and individual Canadians will also be allowed to apply to a superior court in their home province for “relief in accordance with the criteria” set out in its February ruling. The CBC reported that one Quebec City patient had died with the help of a physician, a first in Canada.

No one questions the Supreme Court’s right to strike down this law. However, its growing willingness to dictate to legislators is cause for very real unease. For all of its history, Canada has not had a federal law allowing assisted dying; would the additional two months requested by the Liberals have been an unconscionable extension of that absence? If a new government with untested ministers and a plethora of problems to address feels it needs six months to do an appropriate job on a complex and vital matter, should the court not give it the benefit of the doubt? Does the Supreme Court understand better than the prime minister how much time he needs?

As Emmett Macfarlane, an assistant professor of political science at the University of Waterloo, recently argued, if the court had simply declared the previous law banning euthanasia unconstitutional, the Conservatives would likely have drafted new legislation last year. Further, he argued, a new criminal law may not be necessary; the 2015 ruling itself clearly lays out a set of guidelines under which people can request access to assisted death.

Anyone who believes in the supremacy of Parliament — and if you’re a cardcarrying member of any party, that really should be you — can be forgiven for wondering at the degree to which this Supreme Court seems willing to assert itself in issuing instructions to elected legislators. The Conservatives had valid concerns about the Supreme Court overreach. Now the Liberals have cause to as well.

DOES THE SUPREME COURT UNDERSTAND BETTER THAN

THE PRIME MINISTER HOW MUCH TIME HE

NEEDS?