Image via Sydney Morning Herald
In an early Christmas gift to those of us who love constitutional law, the Supreme Court of Canada delivered its landmark ruling in Attorney General (Canada) v. Bedford, 2013 SCC 72 on Friday, December 20, 2013. While so many commentators refer to rulings of the Supreme Court as landmark, this one truly is a “landmark decision”. The unanimous judgment authored by Chief Justice McLachlin delivers clarification on a number of important issues and, of course, determines that the provisions of the Criminal Code prohibiting the use of bawdyhouses, living on the avails of prostitution and communication in a public place for purposes of prostitution are contrary to s. 7 of the Charter and cannot be justified by s. 1.
This October, the British Columbia Court of Appeal released its reasons in Carter v. Attorney General for British Columbia, 2013 BCCA 435. The Court overturned the previous ruling of Madam Justice Lynn Smith who had cleared the way for physician assisted death. This case will undoubtedly be granted leave to appeal by the Supreme Court of Canada (see Case No. 35591). The Court of Appeal was divided: Madam Justices Newbury and Saunders constituted the majority. Chief Justice Finch dissented. Not only does the decision review the law respecting the right to a physician-assisted death but the judges also discussed the age-old principle of stare decisis, an essential element of the Anglo-Canadian constitutional principle of the rule of law. Based on the Court of Appeal’s rationale, Canadians are not entitled to seek the assistance of a physician when at the end of their lives. And the reason for that is that the Supreme Court of Canada ruled that the law imposing that restriction was constitutional twenty years ago in Rodriguez v. British Columbia (Attorney General),  3 SCR 519.