This is just a quick post to note that Bill C-14 in the more restricted format passed by the House of Commons – for the second time – was just approved by the Senate by a 44 to 28 vote. Earlier, the Senate had returned the Bill to the House of Commons with a substantial majority of Senators agreeing that the House of Commons’ version was too restricted, especially considering the requirement that a person seeking medical assistance in dying (“MAID”) be at the point where his or her natural death was “reasonably foreseeable”. Constitutional experts had testified before the Senate to the effect that this version of the Bill was unconstitutional because it stripped away rights from a group of persons that the Supreme Court of Canada had expressly determined were theirs. So what next?

The next thing, of course, will be Royal Assent. That will occur in the normal course of things. Then some poor soul, like Ms. Carter who would not have qualified under the now passed Bill C-14 because, suffering from spinal stenosis was not at the point where her natural death was reasonably foreseeable, will have to incur the expense and time to apply to court for an order that his or her constitutional rights are being violated. Then the courts will have to go through the whole process all over again, lasting probably another five years, before the Supreme Court will get a chance to determine whether it really meant what it said when it gave Parliament and the provincial legislatures a year to “enact[ ] legislation consistent with the constitutional parameters set out in these reasons“: Carter v. Canada (Attorney General), 2015 SCC 5 at para. 126 [Emphasis added].

The Government has made the point that the Charter is the law: not the Supreme Court of Canada. Well, sort of…. The Supreme Court of Canada is the ultimate arbiter and interpreter of the law. And one would be justified in supposing that the Supreme Court was deliberate in its decision in Carter, both in terms of deciding that the provisions of the Criminal Code were unconstitutional and also in deciding to give Parliament a full year to enact legislation in keeping with its ruling. But the Government, and now Parliament, have decided to thumb their collective noses at the Court and its ruling.

The Court will have to decide whether rule of law means that its decisions must be respected, even by the Government and Parliament, or whether it means that the Government and Parliament can decide that they don’t like the Court’s rulings and, by passing new legislation, can effect a different outcome – because they are supposedly the voice of the people, they are the democratically chosen ones.

On this point, I only hasten to observe that the most recent government was elected by less than 40% of the popular vote. Of course, voter turnout was pretty good – about 68%. About 17 million out of 25 million eligible voters. So a little under 7 million voters.  And there are 35 million souls in Canada. So the Government can say that it was elected by 7 million people in a nation of 35 million. So, I guess the “voice of the people” must mean the voice of 20% of the people.

On the other hand, the Charter and the rights it protects apply to everyone. The Supreme Court of Canada found that people like Ms. Carter have the right to MAID in certain circumstances. The Government – the voice of 20% of the people – has chosen to cut that right back, to remove that constitutional right, from a large segment of society. Not all persons will want to avail themselves of MAID. Of course not. But all persons in Canada, all adult persons at least, had the right to request MAID in the circumstances outlined by the Court. All adult persons until today. So that right has been cut back for all of us.

The Charter is designed to protect the individual from the State’s undue interference in her or his rights and freedoms. It is crafted to ensure that certain core aspects of human dignity and self-determination remain beyond the purview of the collective. I think that this is one such area. When and if I reach a point in my life where I am suffering grievously and irremediably and in circumstances that I can no longer tolerate, I would want to be able to choose MAID. The State has no business in that decision of mine. That is, in essence, what the Court decided in Carter 2015.

Now, regrettably, we get to wait for that poor soul to start the long, expensive, and painful process up the courthouse steps.

I remain

Constitutionally yours,

Arthur Grant