Courts as Regulators: Assisted Suicide in Canada: HS (Re), 2016 ABQB 121

In Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law, Jerry Mashaw writes of how early in the life of the American republic courts occasionally formed part of the regulatory structure:

While Congress left judicial review primarily to common law actions for damages, it provided for access to courts by statute in several situations that effectively made courts (both state and federal) into administrators…Indeed, contrary to modern fastidiousness about saddling courts with “nonjudicial” business, Congress in the early years of the Republic seemed to have little hesitation in using courts or judicial personnel as administrators, or to “commander” state judicial resources (pp. 73-74).

Plus ça change….

In January 2015, the Supreme Court of Canada held that the prohibition on assisting suicide created by two provisions in the federal Criminal Code was unconstitutional: Carter v. Canada (Attorney General), (No. 1), [2015] 1 SCR 331. The provisions creating the prohibition were “void insofar as they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition” (at para. 127).

The Court suspended its declaration of invalidity for 12 months to allow “Parliament and the provincial legislatures to respond, should they so choose, by enacting legislation consistent with the constitutional parameters set out in these reasons” (at para. 126). In the meantime, the prohibition would remain in effect. In particular, the Court did not allow for a regime of constitutional exemptions, in which those who satisfy the criteria set out in the declaration of invalidity could apply to be exempted from the prohibition. The effect was to leave matters “in the hands of the physicians’ colleges, Parliament, and the provincial legislatures” (at para. 132).

A federal general election intervened, however, interrupting the work of the federal Parliament. The new government asked the Supreme Court to extend the period of suspension for a further six months. In Carter v. Canada (Attorney General), (No. 2), 2016 SCC 4, the motion was granted in part. The “four-month delay” occasioned by the election “justifies granting an extension of the suspension of the declaration of invalidity, but only for four months” (at para. 2) and not in respect of the province of Quebec, which has already established its own regime (at paras. 3-4). In the interim, a majority of the Court permitted individuals who satisfy the Carter criteria to apply to a superior court for an exemption from the ongoing criminal prohibition:

This is the first time the Court has been asked to consider whether to grant individual exemptions during an extension of a suspension of a declaration of invalidity. Parliament was given one year to determine what, if any, legislative response was appropriate. In agreeing that more time is needed, we do not at the same time see any need to unfairly prolong the suffering of those who meet the clear criteria we set out in Carter. An exemption can mitigate the severe harm that may be occasioned to those adults who have a grievous, intolerable and irremediable medical condition by making a remedy available now pending Parliament’s response. The prejudice to the rights flowing from the four‑month extension outweighs countervailing considerations. Moreover, the grant of an exemption from the extension to Quebec raises concerns of fairness and equality across the country. We would, as a result, grant the request for an exemption so that those who wish to seek assistance from a physician in accordance with the criteria set out in para. 127 of our reasons in Carter, may apply to the superior court of their jurisdiction for relief during the extended period of suspension. Requiring judicial authorization during that interim period ensures compliance with the rule of law and provides an effective safeguard against potential risks to vulnerable people (at para. 6).

For their part, four dissenting judges recalled the refusal in Carter (No. 1) to countenance a regime of constitutional exemptions, which “would create uncertainty, undermine the rule of law, and usurp Parliament’s role. Complex regulatory regimes are better created by Parliament than by the courts” (at para. 12, quoting para. 125 of Carter (No. 1)). This decision has already been commented upon incisively (e.g. here and here). I want to comment on the latest developments in the constitutional exemptions regime, most notably HS (Re), 2016 ABQB 121. This is the first case in which an individual applied to a superior court for a constitutional exemption. There is an excellent summary at ABlawg. I want to highlight several features of concern.

First, the Alberta courts (where H.S. applied, even though she wanted permission to travel to a clinic in British Columbia) have not developed their own practice direction for handing such cases, unlike their counterparts in Ontario and British Columbia. As a result, even though the Carter (No. 2) decision applies nationwide, it might be applied differently in different provinces (at paras. 63-65). Indeed, Martin J. took the view that “some of the suggestions or requirements” in Ontario and British Columbia “are broader and more onerous than how I read the Carter 2015 requirements” (at para. 64). For instance, Martin J. accepted as sufficient affidavit evidence from H.S., supplemented by statements from H.S.’s doctors that were attached as exhibits to her own affidavit (at paras. 87-91). Martin J. acknowledged that this would not have been sufficient in other provinces: “Based on Carter 2016, I conclude that I am entitled to take a flexible approach to the evidence on this kind of application. I note that I am bound only by the Supreme Court’s directive and not by the Ontario, British Columbia or Québec approaches. It will be up to the individual judge in an individual case to assess the admissibility, authenticity and reliability of the evidence before him or her” (at para. 92).

Second, Martin J. was equivocal about the role of the provincial and federal attorneys  general, noting only that there was “some merit” to H.S.’s position that she did not need to give notice to these authorities (at para. 71). It seems to me that, in the absence of an organization capable of providing an additional perspective on an application for a constitutional exemption in order to counter the risk of abuse (at paras. 73-75), some sort of notice to the provincial and federal attorneys general, as guardians of the public interest, should be required.

Third, although the fact that different provinces may take different views on important questions is a consequence of Canada’s federal structure, the differences on access to assisted suicide result not from the political process but from administrative edicts issued by the superior courts. Nova Scotia has invited the legal and wider communities to comment on its draft guidelines, but this sort of consultation will inevitably be a pale imitation of the broad consultation undertaken by, for instance, Quebec’s National Assembly, or Parliament. One can also wonder whether the Nova Scotia courts are sufficiently equipped to facilitate an open public debate on access to assisted suicide. Put very simply, the lines of accountability for differences between provinces will be blurry.

This is not necessarily to criticize the judicial officers who have taken steps to try to implement the Carter (No. 2) decision. It is the law of the land and they are bound to apply it as best they can. This ongoing saga, which will continue until all outstanding matters are authoritatively resolved by Parliament and the provincial legislatures, is evidence of the difficulties that may arise from suspended declarations of invalidity, suggests that the dissenters in Carter (No. 2) may have had the better of the argument and provides a further argument for carefully considering the bounds of judicial creativity in constitutional remedies.

This content has been updated on March 9, 2016 at 14:02.