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.

Extra Time

Assisted suicide and the trouble with giving politicians time to respond to judicial decisions 

This morning, the Supreme Court heard oral argument in the federal government’s application to extend the suspension of the declaration of invalidity of the Criminal Code‘s provisions that have the effect of prohibiting assisted suicide in any circumstances, which the Court granted in Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331. The suspension of the declaration of invalidity was meant to last a year ― and that period will expire on February 6. The federal government, supported by Ontario, says it needs more time to consider and enact is response. The Carter appellants, represented by Joseph Arvay, argue that additional legislation is not necessary, and any extension of the suspension would cause the beneficiaries of the constitutional right not to be prevented from receiving a willing physician’s assistance in dying to suffer needlessly.

I watched the webcast (except for Québec’s submissions), more because I was interested in what the Court might say about suspended declarations of invalidity in general than out of a preoccupation with Carter itself. (Others have written about the specific issues in Carter, for example Emmett Macfarlane in a post for Policy Options.) Suspended declarations of invalidity are something of a habit for the Supreme Court, and some thoughtful academics believe that it is a bad one. For example, in a blog post for the UK Constitutional Law Association, Robert Leckey argued that suspended declarations of invalidity infringe the Rule of Law and weaken the courts’ power of reviewing legislation. As I wrote in response, I think these are important concerns, although prof. Leckey might not have given enough weight to some countervailing considerations. In any case, as I wrote at the time,  “[w]e need to think more about this issue ― and so does the Supreme Court,” which has been unwilling to give meaningful, or even any, explanations for its decisions as to whether to suspend its declarations of invalidity or not. Unfortunately, if perhaps inevitably, this morning the big questions about suspended declarations of invalidity seemed to me to stay just below the surface of the argument, as the parties and the Court mostly which stayed narrowly focused on the case at bar. (I take it that prof. Macfarlane disagrees.)

There was some discussion of the Rule of Law, to be sure, after the federal government invoked it as justifying the need for comprehensive legislation and as a reason for rejecting the possibility of judges granting individual exemptions if the suspension of the declaration of invalidity is extended. Ontario also insisted on the need for clarity regarding the legal situation of the various persons who may become involved in physician-assisted suicide. Mr. Arvay, for his part, rejected the governments’ claims that allowing the declaration of invalidity to expire without other legisltion in place would generate uncertainty. But there was, understandably enough, no discussion of how the need for legal certainty might play out in other cases where, as Prof. Leckey has argued convincingly, a suspended declaration of invalidity may generate more rather than less uncertainty over the state of the law than an outright invalidation.

But there was no explicit discussion of whether it matters, when we consider the appropriateness of suspending a declaration of invalidity, whether the law at issue is a repressive one or one that attempts to balance the competing claims of various social groups ― as I suggested it might. Clearly, however, something like this concern underlies the difference of emphasis between Mr. Arvay, who insisted on the ongoing violation of the constitutional rights of the people on whose behalf he litigated the case, and the government, which repeatedly spoke of the importance of “buy-in” from physicians and other stakeholders, which in its view only legislation can generate.

Nor was there any discussion of the need for the Court to explain its reasons for granting or denying a suspension of a declaration of invalidity, though one might hope that the Court will be made to reflect on it by an exchange between Justice Wagner and Mr. Arvay. Justice Wagner asked whether the Court had been wrong to suspend the declaration of invalidity it issued in Carter. Mr. Arvay wouldn’t say so, but he did inform the Court that others have. If the Court does indeed think it possible that suspending the declaration of invalidity was a mistake, it should, in my humble opinion, consider the fact that one reason for judges to explain their decisions is that they ― as the rest of us ― are less likely to err when submitting to the self-discipline of giving reasons. Decisions regarding suspended declarations of invalidity are no different from those that concern the other aspects of the cases that courts decide. Had the Supreme Court forced itself to work out an explanation for this aspect of its ruling in Carter, instead of lazily contenting itself with stating that it “would suspend the declaration of invalidity for 12 months,” [128] it might have avoided a decision that it may now have reason to regret.

This morning’s hearing was perhaps most instructive when it came to another issue: that of the respective roles of Parliament, the provincial legislatures, and courts in upholding constitutional rights and making policy, and the implications of a suspended declaration of unconstitutionality for their relationship. The federal government and Ontario emphasized the unusual nature of this case because it makes it necessary, in their view, for both Parliament and legislatures to act. Mr. Avray disagreed that it was necessary for Parliament to legislate (and prof. Macfarlane, for one, shares his view), but even if inapposite in this case, this argument is worth keeping in mind for future ones ― at least if the parties that made it were wrong to say that another such case might never come up again. The Court will also have to ask itself whether the messy realities of politics, including both the time it takes to legislate in general ― to which the parties did refer ―, and the significance of elections and changes of government ― which mostly went unmentioned ― should be allowed to intrude on its somewhat abstract views of dialogue between branches of government.

And beyond these specifics, there is a broader issue of whether Parliament and the legislatures or the Supreme Court should be the main author of the legal framework for assisted suicide in Canada. The government lawyers insisted on the importance of having a legislated framework, for generating both stakeholders’ “buy-in” and for a broader social acceptability. Mr. Arvay, however, was having none of it. He described Québec “death with dignity” law as mostly “bells and whistles,” and was adamant that legislators, both federal and provincial, were effectively superfluous in elaborating a regulatory framework. The efforts, such as they were, of the federal government ― not only of Stephen Harper’s administration, but also of the current one ― towards developing a response to Carter have been “dilatory,” in Mr. Arvay’s view. There is no need to collect more information ― it’s all there, in the trial record. There is no pressing need to legislate ― physicians and their professional regulatory bodies can deal with pretty much any issue that assisted suicide raises on their own.

This contempt for politicians is not surprising coming from a man who would like to insulate the judiciary from any sort of political influence. Yet while it is true that politicians generally have failed to get their act together on the issue of assisted suicide, and that Mr. Harper’s government at least can be fairly described as having procrastinated on responding to the Supreme Court’s ruling in Carter, I think that Mr. Arvay is wrong here, as he is wrong in his quest to “depoliticize” the judiciary. It is not only the politicians that he insults when he says that we need no more discussion than what has happened in the courts ― it is also the citizenry. True, the courts have laid down the constitutional foundation on which an eventual legal framework will have to be built. But it would still be better if elected officials ― and through them, the citizens of Canada ― take responsibility for the building. Mr. Arvay’s position that a process that makes this possible is irrelevant is condescending and disheartening.

I suspect that at least some of the judges ― especially Justice Moldaver, but possibly a number of others ― also think along these lines. But even if they do, it does not follow that they will grant the extension the federal government has requested. They may agree with Mr. Arvay, prof. Macfarlane and others that the extension is not necessary for the legislative process to proceed. (Justice Moldaver himself inquired about that possibility in questioning the federal government’s lawyer.) I do not know how the Court will rule. But I hope that its ruling, whatever its conclusion, is mindful of the issues that it will inevitably raise and that go well beyond just this case.

NOTE: I misspelled Mr. Arvay’s name earlier. My apologies! And thanks for Laura Track for pointing it out to me.

The Two Halves of the Glass

Much has already been written about the Supreme Court’s ruling in Carter v. Canada (Attorney General), 2015 SCC 5, which holds that, at least in some circumstances, the state cannot prohibit a person from seeking assistance in order to end his or her life. At the CBA National Magazine’s blog, Yves Faguy has up a roundup of some of the reactions; Andrew Coyne had a skeptical take on the decision in the National Post; Emmet Marfarlane had a great post for Maclean’s; and there are others.  As a result, there is no point in a full summary-and-comment post from me. Instead, I will only outline two of the many possible ways of looking at the Supreme Court’s unanimous decision ― one optimistic, the other pessimistic.

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The optimistic take on Carter is that it is an excellent illustration of one important function of judicial review of legislation, which its opponents, such as Jeremy Waldron, tend to ignore: the correction of what we might call democratic process failures. Crudely, a market failure is a situation in which, for one of a variety of reasons, the market misallocates goods and services, for example by persistently failing to satisfy demand. Just as crudely, a government failure is a situation where, again for one of a variety of reasons, government regulation creates inefficiencies, including situations where the government persistently fails to regulate in a way that would be socially desirable. Similarly, what I mean by a democratic process failure is a persistent inability of that process to produce laws that majorities would agree with and find desirable.

The existence of a democratic process failure obviates, at least to some (substantial) extent, the “counter-majoritarian difficulty” which judicial review is often said to present. The difficulty is real when the laws being invalidated actually reflect majoritarian preferences. If they do not, however, then their invalidation by courts, can force democratic institutions to act in accordance with majoritarian preferences which they previously ignored. This is, arguably, what happened in Carter. As prof. Macfarlane points out,

[d]espite strong public opinion against an absolute ban on assisted suicide, Parliament and consecutive governments have long shied away from revisiting the issue. The deeply moral nature of the debate, and the complexity in crafting rules to permit anything less than an absolute ban, no doubt played a role in this inaction. However, the inescapable truth of the matter is clear: Political cowardice has played a key part in Parliament’s intransigence, and the only way the issue was going to get back on the policy agenda was for another case to reach the Supreme Court.

Indeed the Supreme Court, in Carter, alluded to this problem, pointing out that “[b]etween 1991 and 2010, the House of Commons and its committees debated no less than six private member’s bills seeking to decriminalize assisted suicide,” [6] none of which passed.

Seen from this angle, Carter is obviously a happy story, a win for democracy as well as for individual rights. Yet the democratic process failure view raises questions which we might not have thought through very well. (Or it least I, in my ignorance, am not aware of their being addressed.) For instance, how do we know that we are dealing with a democratic process failure, rather than a mere temporary misalignment between the voters’ preferences and legislation? Can we identify, in advance, areas in which the democratic process is (most) likely to fail? (Michael Pal argues, convincingly in my view, that the law of democracy is one such area. Are there others?) Or, if we seek to identify democratic process failures ex-post rather than ex-ante, how do we do that? Is the failure of a number of bills on a topic a sign that the democratic process is malfunctioning or simply that the majority does not, in fact, support changing the law? And then,  inevitably, there is the question of whether courts are able to identify democratic process failures successfully and objectively, especially in the absence of much of a theoretical framework.

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The institutional competence question brings me to the pessimistic take on Carter. The Supreme Court’s opinion can be seen as evidence that some of the predictions I made in commenting on the Court’s decision in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, about the dangers of what Kerri Froc would later describe as “the empirical turn in Charter jurisprudence,” are coming to pass. I worried, then, about the loss of transparency and accountability that would result from requiring appellate judges, including those of the Supreme Court itself, to defer to trial-level fact-finding, including in the area of “legislative facts” consisting largely of complex social science evidence. I wrote that

[t]rial decisions, even in important constitutional cases, attract less attention than appellate ones, especially those of the Supreme Court. … Yet under the Supreme Court’s approach in Bedford, by the time a case comes up for appeal, and eventually reaches the highest ― and most visible ― court, it may well already be effectively decided. The Supreme Court can then avoid responsibility for controversial decisions, saying that “the trial judge made us do it.”

Carter is a perfect example of this tactic, which I called “judicial leading from behind.” The Supreme Court’s decision is dependent on the trial judge’s findings regarding the effects of the prohibition on assisted suicide ― not only its effects on the parties who brought the case (the traditional province of the trial judge), but also those other, more or less similarly situated, persons. It is also ― and, crucially ― dependent on the trial judge’s conclusion “that a permissive regime with properly designed and administered safeguards was capable of protecting vulnerable people from abuse and error” [105]. These conclusions, in turn, are dependent on the trial judge’s study of the evidence put before her. But the Supreme Court barely refers to that evidence. It merely restates and endorses the trial judges findings, with little if any explanation of what evidence they are based on or why they are correct. As a result, the opinion reads as a long series of assertions more than an argument for the result it reaches.

Now I do not mean to suggest that the Court did not carefully consider the trial judge’s conclusions. My point is, to a considerable extent, about transparency. I am happy to assume that the Court did its work, but others may not be, and neither they nor I should have to take that on faith. And then, there is the question of whether the trial judge’s conclusions are, in fact, right. Again, I do not mean to suggest that they are not, but others ― Mr. Coyne, for instance ― disagree. Yet under the Supreme Court’s deferential approach, these conclusions could not be disturbed unless they are based on a “palpable and overriding error,” a high standard to meet in any case, and perhaps an impossible one when the evidence consists of inherently uncertain social science.

As I said in commenting on Bedford, the attraction of “leading from behind” is that it allows the Supreme Court to make its decisions look inevitable and unassailable. It seems to be an effective short-term tactic. Yet it is questionable as a long-term strategy. The less transparent judicial review appears to be; the more it looks like a dictation of the judges’ views rather than a rational argument for them; the less legitimate it will become. The Supreme Court is hoping that we will trust it indefinitely. But trust has to be earned and preserved. It cannot be taken for granted.

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So there you have it, a cautiously happy view of Carter and a brooding one. You can pick whatever half of the glass that most appeals to you. Or maybe even both.