The Carter ruling is correct, though I don’t agree with it

The Supreme Court of Canada struck down the Criminal Code provisions making assisted suicide illegal:

In a charter precedent that will go down in the history books as Carter vs. Canada, the court unanimously struck down the ban on providing a doctor-assisted death to mentally competent but suffering and “irremediable” patients.

The emphatic, unanimous ruling prompted tears of joy and frustration on both sides of the debate, reverberated through provincial health ministries and doctor’s offices across Canada, and left skittish federal parliamentarians groping for time to digest the implications.

“The prohibition on physician-assisted dying infringes on the right to life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice,” the nine justices flatly asserted.

The judgment — left unsigned to reflect the unanimous institutional weight of the court — gives Parliament a year to draft new legislation that recognizes the right of clearly consenting adults who are enduring intolerable physical or mental suffering to seek medical help in ending their lives.

It does not limit physician-assisted death to those suffering a terminal illness.

And to put an exclamation mark on the ruling, the court awarded special costs against the government of Canada for the entire five-year course of the litigation, less 10 per cent to be paid by the government of British Columbia.

The court suspended its judgment for 12 months, during which the current law continues to apply, placing enormous pressure on Parliament to act in what is an election year.

(An aside: remember when Stephen Harphitler was going to pack the Supreme Court with Conservative loyalists who would rubber-stamp everything he did?  Didn’t quite work out that way, did it?)

I’m torn on the issue of assisted suicide.  I fundamentally believe a person should have the right to do what he wants with his body, and if you’re suffering from an incurable, terminal medical condition, I can understand why you’d want to end the misery on your own terms.

I also firmly believe that this starts the proverbial slippery slope toward extending this “right” to people who are not competent to make the decision to end their lives, young children, and that we will ultimately see people given the right to make end-of-life decisions for disabled people in their care.    (Indeed, supporters of Robert Latimer have been arguing for this ever since he took the life of his severely disabled daughter in 1993.)

Andrew Coyne argues that the Court did not seriously consider the implications of its ruling:

…on what grounds could any limit be placed on this right? Once we have embraced the idea of suicide, not as a tragedy we should seek to prevent, but a right we are obliged to uphold; once the taking of life has been converted from a crime into a service — “physician-assisted death” — to be performed at public expense; once we have crossed these sorts of philosophical and legal divides, how is it to be imagined that we could stop there?

The Court airily dismisses concerns that euthanasia will be expanded or abused, as it has been in those few jurisdictions where it has been legalized, as “anecdotal.” Very well. Perhaps the Court is right, that the “medico-legal culture” of Belgium, where assisted suicide is now provided to children and prisoners on demand, is different than Canada’s.

But it is not in the administration of the law that I fear we will see the “slippery slope” at work so much as it is in its interpretation. Perhaps the Court’s confidence that “safeguards” can be devised that will prevent the spread of euthanasia beyond the competently adult and the clearly consenting is well placed. But there can be no safeguard against the Court’s own future decisions.

Some day, someone is going to bring a case before the Court arguing that children with an incurable disease and in “intolerable” pain should also have the right to assisted suicide, perhaps with their parents’ consent. Is the Court really going to condemn them to endure years of excruciating pain until they are of age? Likewise, is it really prepared to leave the mentally incompetent to suffer unbearably, when with the signature of a legal guardian they could be released? Or if personal autonomy is all, why should a “grievous and irremediable medical condition” be required? Isn’t it enough that you want to be dead, but need someone to help?

So, I’m worried about what the Carter decision means.  And yet, paradoxically, I think the Court dealt with the slippery slope argument appropriately.

In deciding whether a law is unconstitutional, a Canadian court must then turn its attention to whether the infringement of a Charter right can be justified “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society,” as stated in section 1 of the Charter of Rights and Freedoms.

In layman’s terms, it must be established that the offending law has an important, pressing societal objective, and that it carries out this objective by infringing upon the Charter rights as minimally as possible.

The Court notes, correctly, that “slippery slope” arguments are speculative by nature:

[118]                      Canada also argues that the permissive regulatory regime accepted by the trial judge “accepts too much risk”, and that its effectiveness is “speculative” (R.F., at para. 154).  In effect, Canada argues that a blanket prohibition should be upheld unless the appellants can demonstrate that an alternative approach eliminates all risk.  This effectively reverses the onus under s. 1 , requiring the claimant whose rights are infringed to prove less invasive ways of achieving the prohibition’s object.  The burden of establishing minimal impairment is on the government.

[119]                      The trial judge found that Canada had not discharged this burden.  The evidence, she concluded, did not support the contention that a blanket prohibition was necessary in order to substantially meet the government’s objectives.  We agree.  A theoretical or speculative fear cannot justify an absolute prohibition.  As Deschamps J. stated in Chaoulli, at para. 68, the claimant “d[oes] not have the burden of disproving every fear or every threat”, nor can the government meet its burden simply by asserting an adverse impact on the public.  Justification under s. 1  is a process of demonstration, not intuition or automatic deference to the government’s assertion of risk (RJR-MacDonald, at para. 128).

[120]                      Finally, it is argued that without an absolute prohibition on assisted dying, Canada will descend the slippery slope into euthanasia and condoned murder.  Anecdotal examples of controversial cases abroad were cited in support of this argument, only to be countered by anecdotal examples of systems that work well.  The resolution of the issue before us falls to be resolved not by competing anecdotes, but by the evidence.  The trial judge, after an exhaustive review of the evidence, rejected the argument that adoption of a regulatory regime would initiate a descent down a slippery slope into homicide.  We should not lightly assume that the regulatory regime will function defectively, nor should we assume that other criminal sanctions against the taking of lives will prove impotent against abuse.

In practice, I do not believe assisted suicide will be limited to those who care competent to request it.  But I concede that this is speculative, and that our courts may very well rule that this is something the disabled and the young should be protected from, not a right that should be extended to them whether we really know they want to exercise it.

“Slippery slope” arguments are considered logical fallacies, and court decisions should not be based on logical fallacies.  I think my fears about assisted suicide may be borne out, but they aren’t inevitable.  And if they aren’t inevitable, the Charter right is not minimally infringed upon.

I know this seems pretty confusing, but it’s a morally complex issue (dominated, like most morally complex social issues, by the loudest and most extreme voices on each side).  To summarize, by head agrees with the Carter ruling, though my heart is worried about it.

The unluckiest man in Quebec

I feel awful for this poor guy, but if the convenience store clerk was telling the truth – that he warned him that his second ticket was for the following week’s draw – I think the courts have ruled correctly on this matter:

The Supreme Court of Canada has dismissed a Quebec man’s claim to a $27 million jackpot because his lottery ticket was printed seven seconds after the cut-off time.

On Thursday, Canada’s top court said it would not hear Joel Ifergan’s lottery case. The SCC dismissed his request for an appeal with costs.

Ifergan purchased two lottery tickets for the May 23, 2008 Super 7 draw at 8:59 p.m., one minute ahead of the weekly draw deadline. His first ticket printed with the May 23 draw date on it, but his second one came out seven seconds after 9:00, with the May 30 draw date printed at the top.

That second ticket had all the winning numbers for the May 23 jackpot, but Loto-Quebec rejected the claim because the ticket said May 30.

Ifergan says he’s entitled to half of the $27 million awarded in the May 23 draw because his tickets were purchased ahead of the deadline, regardless of whether they were printed after it. He blames Loto-Quebec’s 10-second processing delay for denying him his share of the jackpot, which was awarded to another winner.

[…]

Convenience store owner Mehernosh Iranpur says he sold Ifergan the tickets, and Ifergan knew the second ticket was for the next draw.

“I asked him, ‘It’s for next week. Do you want it or not?’” Iranpur said. “He says, ‘No, I’ll keep it.’”

Then again, for many lottery winners, the jackpot turns out to be more of a curse than a blessing.   Maybe Mr. Ifergan is luckier than he thinks.

The story of a little prick

The country’s highest court has ruled that if your partner consents to sexual intercourse with protection, and then you tamper with the condom in some way, you are guilty of sexual assault:

The Supreme Court of Canada has dismissed an appeal by a Nova Scotia man who was convicted of sexual assault for poking holes in his girlfriend’s condoms.

The case involved Craig Jaret Hutchinson, who was sentenced to 18 months in jail in December 2011, after he admitted damaging his former girlfriend’s condoms in an attempt to impregnate her so that she would not end their relationship.

While the Supreme Court’s decision to dismiss the appeal was unanimous, the seven justices were divided into two camps in their reasons for the decision.

The majority ruled that Hutchinson’s decision to sabotage the condom exposed his girlfriend to an increased risk of pregnancy and constituted fraud.

“We conclude that there was no consent in this case by reason of fraud,” the judges wrote in their decision.

The three other judges wrote that the question in the case was not whether the girlfriend’s consent was “vitiated,” or invalidated, by fraud, but whether the girlfriend had consented to “how” the sex had taken place.

[…]

The court was also clear that merely deceiving a sexual a partner — for example, by lying about one’s marital status – would not be enough to warrant a sex assault conviction.

The justices writing for majority noted that their decision recognizes that not every deception “that induces consent” should be criminalized.

“To establish fraud, the dishonest act must result in a deprivation that is equally serious as the deprivation” in this and similar cases, they wrote.

Full decision here.  The ruling makes sense to me – in this case, while the woman consented to sex, she clearly had not consented to it being carried out in such a potentially harmful manner.  (She became pregnant, chose to terminate the pregnancy and then wound up with a uterine infection.)

The question is, if this were the other way around – if the female partner somehow tampered with the condom, in the hopes of surreptitiously getting pregnant – is there any reason why she wouldn’t be guilty of sexual assault?  What if she said she was unable to have children, or lied about being on birth control?  What if the male partner lied about being sterile?  It will be interesting to see how this case is applied.

Omar Khadr and the rule of law

Dan Gardner explains that the Khadr case is not about national security so much as it’s about holding the federal government to its obligations under the constitution:

In 2010, a federal court judge agreed that the involvement of Canadian officials in Khadr’s detention and interrogation brought the Charter of Rights and Freedoms into play and that Khadr’s Section 7 right to security of the person had been violated. It ordered the government to ask the American government to send Khadr back to Canada. The federal court of appeal agreed. So did the Supreme Court.

[…]

But then the Supreme Court balked.

Traditionally, courts have been very deferential to a government’s exercise of its prerogative power to direct foreign affairs. And for good reason. Courts have not the expertise, capacity, or mandate to conduct foreign affairs. But they do have the expertise, capacity, and mandate to uphold the Constitution, including the Charter of Rights and Freedoms — which had clearly been violated.

The Supreme Court tried to square the circle. “We conclude that the appropriate remedy is to declare that, on the record before the Court, Canada infringed Mr. Khadr’s s. 7 rights, and to leave it to the government to decide how best to respond to this judgment in light of current information, its responsibility for foreign affairs, and in conformity with the Charter.”

So the Supreme Court didn’t order the government to ask for Khadr’s return. It did not order the government to act at all. But given the gravity of the ruling, it clearly expected that the government would act.

Facing a grossly unfair trial, and life in Guantanamo if found guilty, Khadr accepted a plea bargain of eight more years in prison, with transfer to Canada after one. The government signed on. Does that honour the Supreme Court ruling? It’s hard to see how it does. But at least it’s something.

Or rather, it would have been something if the government had upheld the bargain. But it hasn’t. Instead, the government has pretended Omar Khadr doesn’t exist.

In doing so, the government has disregarded the Constitution and ignored the Supreme Court. Arguably, it has even been contemptuous of both.

Omar Khadr is a citizen of this country. What you think of him doesn’t matter. He is a citizen. And if the government can do this to him, it can do this to any citizen.

Eric, Lola, and division of property

This week, the Supreme Court of Canada will revisit the issue of whether common-law spouses are presumptively entitled to an equal division of family property:

They’re known as “de facto spouses.” Partners in a paperless marriage. Or, in this case, plain old Eric and Lola.

But there’s almost nothing ordinary about the tale of a 51-year-old Quebec billionaire businessman and a former Brazilian model, whose messy legal battle could change life for millions of Canadian couples.

Their case, which reaches the Supreme Court of Canada [this] Thursday, is expected to decide whether common-law spouses have the same rights as married couples to support and sharing of property after a break-up.

While the case is likely to have its greatest impact in Quebec, legal experts predict that if Lola succeeds in her landmark challenge, eight other provinces and territories that deny property rights to unmarried spouses, including Ontario [and Nova Scotia – DJP], will be forced to rethink their legislation.

As a starting point, common-law spouses should have the right to both alimony and an equal share in property, argue lawyers for the Women’s Legal Education and Action Fund (LEAF), an intervenor in the case.

[…]

Looming over the case is a 2002 decision by the Supreme Court involving Susan Walsh, a Nova Scotia woman who sought a share of her late common-law husband’s assets. In that case, the court’s 8-1 majority upheld a section of Nova Scotia’s Matrimonial Property Act, which gives only married people a share in a partner’s property.

The court said excluding common-law couples was a way of respecting their decision to avoid marriage because of the legal obligations that go along with it.

LEAF argues it is time to revisit the Walsh decision, saying the court in 2002 did not have the benefit of social science research that shows when people move in together, they aren’t motivated by legal considerations.

In fact, North American research over the past decade has shown that most couples who live together are under the mistaken impression they already have the same rights as married couples.

Via @John_Magyar.

Lamer’s last days

An all-too-rare look at the inner workings of the Supreme Court of Canada, via this past weekend’s Globe and Mail:

Antonio Lamer startled the legal world when he resigned as chief justice of the Supreme Court of Canada in 1999 with nine years left in his term. Twelve years later, the story behind the surprise departure of the country’s top judge reveals a tale of intrigue and apprehension at the highest levels of the Supreme Court.

Alarmed by the chief justice’s wandering concentration and a fall on the stairs of an Ottawa restaurant, the other eight Supreme Court judges banded together and gave him a gentle prod toward the door.

Besides shedding light on a fascinating chapter in Supreme Court history, the story of chief justice Lamer’s departure opens a window into a world rarely glimpsed. Outside of the cloistered world of the judiciary, there has been precious little public discussion about the delicate question of what happens to a judge whose health and performance falters.

The judges were intent on showing respect to a jurist who had played a pivotal role in fleshing out a broad span of individual rights under the Charter. They selected a delegation of three veteran judges who embodied experience, candour and impartiality.

“We didn’t ask him to resign,” recalled former Supreme Court judge John Major, one of the three who attended the ultra-sensitive meeting with their chief. “We merely said that his performance was not what it had been up until this time. … He said instantly: ‘Well, then I’ll resign.’ ”

Via @nspector4.

Harper and the Supreme Court

Now that the Conservatives have won a majority government, it’s worth revisiting this April 22 column by Adam Radwanski of The Globe and Mail, about the effect this could have on the highest court in the land:

Of the nine justices who serve on the Supreme Court of Canada, three – Ian Binnie, Morris Fish and Louis LeBel – will hit the mandatory retirement age of 75 within the next four years. Another, Marshall Rothstein, will come very close to it. Chief Justice Beverley McLachlin would be 71 by the end of a majority government’s mandate, and Rosie Abella would be 68.

In other words, Mr. Harper would have an excellent opportunity to shape the country’s top court. And given that court’s enormous role in shaping public policy, particularly since the Charter of Rights and Freedoms came into effect nearly three decades ago, that could be a very transformative power.

If one were looking for signs that the abortion debate is about to be reignited, this would be a better place to start than the musings of a backbench MP. Realistically, though, it seems unlikely that Mr. Harper would overload the judiciary with raging social conservatives. If his goal is to firmly establish the Conservatives as the country’s dominant national party, then returning the focus to hot-button social issues that helped derail its past campaigns would be a dubious strategy.

But if his goal is also to subtly shift the country’s laws and institutions and culture of governance toward something more in line with his party’s vision for the country – as opposed to the one held by the Liberals – there is much that the Supreme Court could help with. From property rights to issues of federal-provincial jurisdiction to law and order, not to mention the balance between national security and individual liberties, there’s all sorts of room to help turn Canada into a more small-C conservative country.

Left-wing bloggers picked up Radwanski’s piece and ran with it, raising the spectre of radical right-wingers being appointed to the Supreme Court to implement Harper’s Hidden Agenda™.

Considering that Canada has nothing like the conservative legal movement in the United States (the Canadian Constitution Foundation is no Federalist Society), I’m not sure where Harper would find these radical right-wing judges in the first place.  As Radwanski admits, Harper’s appointments to date – Justices Marshall Rothstein and Thomas Cromwell – are no fire-breathing radicals.

Still, maybe this will re-open a debate on the Prime Minister’s near-absolute power to appoint Justices to the Supreme Court of Canada, with little scrutiny by Parliament.  (A power that, needless to say, left-leaning Canadians didn’t seem to mind when Liberal Prime Ministers were making the appointments.)