Canadian Cincinnatus

Supreme Court ruling on doctor assisted suicide is judicial overreach

According to the National Post:

“In a unanimous decision, The Supreme Court Friday struck down as unconstitutional the nation’s contentious century-old law against assisted suicide.”

“Today’s ruling stems from the appeal of a 2012 lower court ruling launched on behalf of two British Columbia women with debilitating and terminal illnesses, Gloria Taylor and Kay Carter, both now dead.

During oral arguments in October, their lawyers argued that section 241(b) of the Criminal Code, prohibiting aiding or abetting someone to commit suicide, violates the Charter’s section 7 rights to life, liberty and security of the person and condemned them to a life of severe and intolerable suffering.”

Just so you know where I am coming from, I actually agree with the plaintiffs as far as the issue of assisted suicide is concerned. While I agree that the suicide of a teenager, distraught over some insignificant teen angst is a horrible tragedy, I am nevertheless sympathetic with a terminally ill cancer patient who only wishes to end his pointless suffering. I think that such people understand their own predicament far better than a disinterested onlooker can. I believe they should be free to decide their own fate without outside interference from busybodies - busybodies who may be motivated by values they don’t themselves hold. The law is there to protect us from predatory criminals, but beyond that, it should leave us alone.

But here is the thing: I also believe in a limited constitutional democracy, where the laws we live under are enacted by our duly elected representatives. I understand that my opinions on suicide are not shared by every other Canadian, but fortunately we have a place where conflicting moral claims can be debated and settled. That place is Parliament.

In contrast, the purpose of the Supreme Court is to interpret the law in specific, problematic or difficult cases. Perhaps there are novel factors at work that were never pondered by our parliamentarians. In such instances, it is the Court’s job to interpret the law using accepted legal practices – but to take care and not exceed the limitations inherent in those practices. This case is not like that. The law in question here expressly contemplated the topic of suicide, and declared it illegal. Every Parliamentarian who voted for that law knew what suicide is and if he had wanted an exemption for mercy killing, he would have put it in.

The other function of the Supreme Court is to ensure that Parliament does not exceed our constitution. Is that the case here? According to the press, one of the relevant Charter Rights passages is section seven:

“7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

No fair reading of this passage could lead one to the conclusion that it requires the legalization of suicide or mercy killing. The plain purpose of this text is to ensure that Canadians are not subject to arbitrary arrest or punishment. In other words, whenever a Canadian is arrested or sentenced it must be in accordance with principals and procedures enshrined in British common law, such the presumption of innocence. To be sure, adjudicating the application of such principles in particular cases usually requires a legal degree in order to properly understand the technical issues involved. But this is not the case here. Whether suicide or mercy killing should or should not be tolerated is a matter for morality. It is not about a legal technicality. The place for deciding such questions is Parliament, if the answer is not explicitly stated in the constitution (as is the case here).

Whenever the Supreme Court exceeds it proper role, the less we live in a free society and the more we live under an unelected oligarchy. We find ourselves in a place not too dissimilar from ancient Egypt, where a caste of priests made up laws via the examination of chicken entrails under the guidance of obscure and inscrutable principles.

Unfortunately reigning in the Supreme Court is easier said than done, because that body does have a legitimate role in checking the constitutional abuses of Parliament. How do our Parliamentarians constrain the Court without effectively removing the legitimate power that the Court should be able to exert over Parliament itself? A question worthy of King Solomon.

Worse still, few of our Parliamentarians are inclined to take up this challenge. The extremist radicals prefer the current arrangement because they like getting laws enacted that they cannot pass by conventional means. Judge-made laws are a favourite tactic of the left. The rest of our politicians are glad that the Supreme Court is willing to tackle messy moral issues for them, no matter that deciding such issues is what they are getting paid the big bucks to do.

All of this may sound like a quibble, especially by somebody who agrees with the particulars of the ruling itself, but it is though such procedural decay that the legal foundations that make Canada strong and free are gradually being undermined. 

Jonathan Kay is wrong: don’t send the Anti-Prostitution law to the Supreme Court for pre-approval

In a National Post column, Jonathan Kay makes the following argument:

“The federal NDP has called on the Canadian government to submit its new, constitutionally dubious prostitution law directly to the Supreme Court for a reference opinion on its compliance with the Charter of Rights and Freedoms. I agree: It could take more than half a decade for a new group of sex-trade litigants to take a Charter challenge up the appellate food chain. Until then, Canada will be saddled with a prostitution law that isn’t much better — and, in some important ways, is worse — than the old laws stuck down by the Supreme Court in its 2013 Bedford ruling.”

This conclusion encapsulates much that is wrong with Ottawa’s elitist culture.

I say this not because I am a friend of the Conservative’s new prostitution law, or a friend of prostitution laws in general. I am not. In this, I agree mostly with Kay. I believe it would be much better to license, regulate and tax prostitutes. I also believe that the new law is worse than what it replaces because it goes further in the direction of men-are-wrong-and-women-are-always-victims school of philosophy propagated by man-hating feminists.

Having said that, there is a higher principle at stake here than merely one corner of the criminal code: it is the separation of powers. In our government, the Prime Minister and Cabinet is the executive, while Parliament makes the laws, and the Supreme Court interprets the laws and enforces constitutional provisions. For this system to stay in balance, each branch of government must confine itself to its assigned role. This includes the Supreme Court. 

Of these three, the only unelected branch is the Supreme Court. Because the Supreme Court is required to adjudicate cases brought before it dispassionately, it has been felt that appointing rather than electing judges is necessary in order to insulate them from partisan influence and popular passion. However, there is a flip side: because they are unelected, they should only make judgements based on the particular facts of the case, or the law relevant to the case, and nothing else. Exceeding these limits means that they are no longer refereeing but legislating. At that point, we no longer live under the rule of law but rather under a legal aristocracy, little different from ancient Egypt, where a small group of priests told everybody what to do after examining the entrails of chickens. 

Another check on the Supreme Court’s power should be that they only consider cases after they have wound their way through the courts. Unfortunately, Parliament has the ability to bypass the courts and refer its laws directly to the Supreme Court. This is called referral power and is recommended by Kay to settle the prostitution law. I believe that the very idea of referral powers is wrong because it creates a cozy relationship between various branches of government when they should be pitted against one another.  This tilts the balance of power in favour of our elites by facilitating the coordination of their activities.  

In the United States, the land where judicial review was invented (through the landmark Marbury vs. Madison decision), the idea of Congress going directly before the Supreme Court is abhorrent. To reach the Supreme Court, a case must make its way through the entire federal court system. And unlike Canada, where our justices are selected by one man who doesn’t have to justify his choice, prospective Justices in the US are subject to a Senate confirmation process that is sometimes gruelling and cruel.

I think it was Justice Antonio Lamar who complained in the 1990’s about all the criticism his court was getting, contrasting it to the respect Canadians had for the Court in the 1960’s. Well, you know what Antonio? People revered the old Supreme Court because it tended not to overstep its bounds. It is only after the Constitution Act of 1982, when the Court started playing Parliament – like it did with the Bedford ruling, where the existing prostitution law was struck down, at least partially, for reasons having nothing to do with constitutional principles – did the public’s attitude change. Don’t like the heat Antonio? Don’t make laws disguised as rulings. 

Kay concludes his piece with, “Enough with the moralizing: Send this law to the Supreme Court.” You know what Jonathan? Parliament is the proper place where moral concerns, as well as fiscal limitations, economic considerations, and social consequences (such as the harm faced by prostitutes when plying their trade) should be debated – not the unelected Supreme Court. When Parliament gets it wrong (as it often does), our Parliamentarians have to answer to their voters. If the Supreme Court gets it wrong (as it also often does)… well, that’s just too bad. 

Therefore, the scope of the Supreme Court’s constitutional rulings should be strictly limited to enforcing the constitutional law, as it is written. And Parliament should not be colluding with them using their ‘referral power’.

And if you insist that we shouldn’t legislate morality, I will ask you, why murder and rape are illegal? Answer: because these acts are immoral. The left has enjoyed great success in justifying its positions with moral principles. It’s only a problem when conservatives do the same.

We should debate our moral questions openly and democratically, and not hide behind our legal priesthood.