Whose Right Is It Anyway?

A primer on how basic rights are guaranteed and evolved, specifically in the context of Bill C-7. Why did a Quebec court impose a deadline on federal Parliament? Is there such a thing as a right to die with dignity? And what are the tradeoffs between elected and appointed powers when it comes to rights?

This week, as the temperature goes up in Ontario, the political climate is heating up too, and there’s a growing sense that a federal election will soon be inevitable. The stage is being set in numerous ways, such as a very active Parliament looking at things like the Uighur genocide resolution, the mandatory hotel quarantine, and Bill C-21, a bill that will support municipalities wishing to restrict or ban handguns, which is expected to boost the Liberals’ standing in urban centers. However, today I want to focus on Bill C-7, which is also seeing plenty of activity, but not stemming from an electoral interest.

Instead, the government has been scrambling to pass this bill for about a year now, in order to fulfill a ruling by the Quebec Superior Court around medical assistance in dying. More specifically, Bill C-7 seeks to to remove the “reasonably foreseeable death” condition to be eligible for assisted suicide, as that specific condition was deemed unconstitutional by the Quebec Superior Court in its September 2019 ruling. That condition was added to the Criminal Code by Bill C-14, passed by this same government in June 2016. And Bill-C14 itself was the reaction to a 2015 Supreme Court of Canada ruling that declared unconstitutional the Criminal Code’s prohibitions on assisted suicide and consent to death. Confused yet? Let’s unpack this.

Fundamental Rights

How are these fundamental rights defined, enacted, and changed or challenged? Let’s start with a brief review of civil and political rights. Wikipedia defines them as “a class of rights that protects individuals’ freedoms from infringement by governments, social organizations and private individuals.” Civil and political rights are a subset of human rights in general, covering things like personal safety and integrity, protection against discrimination, the right to privacy, and freedoms of thought, speech, religion, assembly and movement, among others. Being human rights, they are commonly understood to be inalienable and fundamental, which is to say that we are all entitled to them simply by virtue of being human.

Worldwide, the United Nations Universal Declaration of Human Rights is considered the foundational text on this topic. In Canada, it inspired the Canadian Bill of Rights in 1960, which was succeeded by the Canadian Charter of Rights and Freedoms in 1982. This enshrined in our Constitution the political rights of Canadian citizens, and basic civil rights of everyone in Canada. Being inalienable and fundamental, these rights are not created by government; they are recognized, guaranteed and protected, and as you would expect that is done through government institutions, such as police and the criminal prosecution system.

A common source of tension with these rights is to what extent they relate to protecting individuals from government, vs protecting them from other organizations and individuals. For example, the right to freedom of speech implies that the government can’t prosecute me for criticizing it. It doesn’t mean that I can post whatever I want to your social media accounts and that you can’t delete my content, or outright ban me. Another example is the tension between freedom of religion, freedom of speech, and hate speech laws. In essence, hate speech laws protect certain human rights at the expense of restricting free speech in some circumstances, within constitutional limits. There are cases where the government can’t prosecute someone for expressing certain opinions that would otherwise constitute hate speech, such as when arguing for a religious belief in good faith. However, this doesn’t mean that other parties, like private employers and other individuals, can’t take measures against people in these circumstances.

Do Fundamental Rights Evolve?

But a discussion I find more interesting is, how do these rights change over time? Or does the mechanism that government uses to uphold or guarantee them change? And if so, how?

There are three broad mechanisms to this effect. The first is direct government action through executive orders, such as orders in council enabled or accommodated by law. An example of this are the emergency lockdown orders used during the pandemic, as well as the mandatory hotel quarantine for incoming travellers by air. Both types of measures are meant to help protect or guarantee the health and safety of Canadians, though one could argue that the latter interferes to some extent with mobility rights enshrined in Section 6 of the Charter. Note that these mechanisms rest with elected officials, particularly the Prime Minister or provincial premiers, and members of cabinet. These players are liable to voters on their actions, which arguably provides a powerful set of checks and balances. It doesn’t guarantee that these people won’t make mistakes, particularly as they seek to please their constituents; but arguably their elected status provides an incentive for them to think carefully about these rights and their trade-offs, because the electoral cost can be high.

The second mechanism is directly changing laws through Parliament, and like the first, this mechanism rests with elected officials. Bill C-21 is an example of this. The bill amends the Criminal Code and others acts, seeking to better control gun smuggling and trafficking, imposing more restrictions on the ownership of certain types of firearms and ammunition, and potentially allowing cities to restrict the storage and transport of handguns within their jurisdiction, among other measures. All of this is meant to further guarantee Canadians’ safety.

The third mechanism is judicial review, which allows the court system to review executive or legislative actions, and especially to challenge the constitutional status of specific laws. A key difference between this mechanism and the previous two is that the judiciary is appointed instead of elected. This is a good thing, as it actually provides checks and balances against elected officials.

However, there’s an element of controversy here. One viewpoint is that judiciary review should be restrained, seeking to interpret laws within the spirit or intent of its original context and preserving what’s known as parliamentary supremacy, which is the idea that the legislative body should be supreme over all other government institutions in a parliamentary democracy. An opposing viewpoint is that judiciary review should be more expansive, and potentially seek to reinterpret precedent and the constitutional text in the present context. This approach is sometimes known, somewhat despectively, as judicial activism.

Understanding Bill C-7

Having seen this, let’s go back to Bill C-7. When it comes to who is eligible for assisted suicide, why is the current Criminal Code, which was amended on this very topic less than five years ago, now deemed unconstitutional? In the beginning, the Criminal Code penalized suicide, assisting someone in committing suicide, and consenting to death being inflicted on oneself. Suicide itself was decriminalized in 1972. That still left penalties on assisted suicide and consenting to death.

Before we go on, let’s take a quick look at three sections of the Canadian Charter of Rights and Freedoms. Section 7 guarantees the right to “life, liberty and the security of the person.” Section 12 protects against “cruel and unusual treatment or punishment.” And Section 15 guarantees “equality” of rights among people, or non-discrimination.

Thirty years ago, there was a woman in British Columbia named Sue Rodriguez. She had amyotrophic lateral sclerosis. Her prognosis was less than one year to live, and she wished to take her own life, but was physically incapable of doing so. Because of the Criminal Code, her family and doctors couldn’t help her with this wish. So in 1993, they challenged the constitutionality of the relevant sections of the Criminal Code. The argument went like this: the Criminal Code robbed the patient her liberty right to take her own life – so, Charter Section 7, in circumstances where life had been reduced to what amounted to cruel punishment – so, Section 12, whereas others in similar conditions were physically able to take their own life if they so chose (section 15 of the Charter.)

However, the case was lost. By a narrow 5-4 decision, the Court upheld the provisions in the Criminal Code. In 2015, a very similar challenge made its way to the Supreme Court of Canada, but this time, the Court unanimously struck down as unconstitutional the Criminal Code provisions on consenting to death and assisted suicide. What changed for the Court to deviate from its own precedent? You see, when a law potentially interferes with Section 7 of the Charter, the Court tests whether it’s arbitrary, overbroad, or grossly disproportionate. In its 2015 decision, the Court found that these elements of the test had “developed” since 1993. More specifically, the Court found that the Criminal Code prohibitions were good, in that they sought to protect vulnerable persons from committing suicide in a moment of weakness. But the Court also found that the law was overly broad; it caught cases that fell outside of this protection I just described.

Upon striking down the corresponding sections of the criminal code, the Court gave Parliament twelve months to update the Code accordingly, and that’s how Bill C-14 became law, and medical assistance in death became legal in Canada. However, almost since that very moment, there were arguments that the Supreme Court ruling was broader than what the amended Criminal Code allowed. For instance, in an attempt to preserve the legitimate protections of the original Code for vulnerable people, the amended Code made assisted suicide legal only for patients whose death was “reasonably foreseeable,” something that the Supreme Court ruling didn’t necessarily imply. And this paved the way for the 2019 Quebec Superior Court decision that struck down that provision as unconstitutional, leading to the current situation around Bill C-7.

Reinterpreting Fundamental Rights

There’s plenty of complexity to unpack here, somewhat irrespective of of where does one stand on euthanasia. First, note the pattern. There is no explicit right to die with dignity. There were laws that prohibited consent to death and assisted suicide. These laws were challenged in court as unconstitutional, and the court struck them down. As a result, assisted suicide is now legal. But there is still no explicit right to it; just an interpretation of the basic right to liberty, to understand that it allows taking one’s own life.

Second, the challenge was made in court. A constituent didn’t email their MP to introduce a debate on the floor to challenge the Criminal Code. To an extent, that makes sense, because a challenge on the grounds of unconstitutionality can only be heard by the Supreme Court. And it’s important that minorities and Canadians in general have direct access to the legal system. However, it does place these decisions in the hands of appointed justices, as opposed to elected officials. Which again, in and of itself is not a bad thing; it’s part of the checks and balances that make democracy strong, which also involves a separation between those who make the laws and those who interpret and apply them. But as we saw with the “overly broad” test, there is considerable interpretive latitude in these matters; and with that, the risk of blurring those lines between making laws and interpreting and applying them, and having more of an activist court.

One more thing I’ll note is that striking down a law as unconstitutional may not provide enough details on how to proceed, which I think explains what happened here. The Court found the Criminal Code impinged on some Charter rights. The 2016 Parliament attempted to strike a balance between that and other concerns, but based on the legal precedent, the legal attitudes of current justices, and arguably the current moral standards of most Canadians, that balance wasn’t good enough and had to be reviewed again.

On February 25 this year, after several deadline extensions, the Court granted government one more month to pass Bill C-7. That extension is meant to accommodate backs and forths between the House of Common and the Senate, as both chambers of Parliament seek to strike the right balance between fundamental rights of several sets of people, among other reasons arguably to prevent subsequent constitutional challenges. So, in a sense, the checks and balances system is working. Parliament, which is the elected body in charge of making laws, is debating these topics on behalf of their constituents. But the prospect of judiciary review looms in the background. Maybe as an appropriate counterbalance. Maybe as something else.

Fascinating, eh? And the same process is behind some of the most contested issues in modern society, like the definition of marriage and the legality of abortion. Their processes exhibit pretty much the same pattern.

Biblical and Ethical Considerations

I don’t want to end this episode without telling you what I think the Bible says about euthanasia. As a matter of death, you would think it has to do with the philosophical answer to the question of destiny – what happens after life. But in fact, from a biblical standpoint this roots itself in the origin matter – where do we come from. The Bible teaches that we are made in the image of God. Whether that is physically or intellectually, the thing on Earth that most closely resembles God are humans. We are image bearers of God, which is the basis for the sanctity of life. Now, imagine that someone takes a picture of you and uses it as a target to throw darts at. You may find that unnerving, unsettling, and even offensive. In the same way, whatever attempts harm against those who bear the image of God is, in effect, attacking God.

Now, you could argue, “but this is someone’s own life, and it may be pretty degraded.” And, Christianity being fairly counter cultural, would say in response to that, “Whose life is it anyway?” We don’t own our lives from a biblical standpoint – we’re stewards of the life God gives us, to administer and live out. When you think about it, you don’t choose to be born, you don’t choose where you are born, you don’t choose in which family you’re born. Again, countercultural, somewhat controversial.

Beyond this biblical stance, with this topic there remains the concern of interpretive latitude, and how this mechanism enables something of a slippery slope in this and potentially other topics also involving human rights. In February 2020, when Bill C-7 was first tabled before Parliament, the Christian Legal Fellowship published a summary and analysis of the Bill. In it, the Fellowship highlighted, and I quote:

Medical Assistance in Death was initially presented as an exceptional mechanism to be employed only to hasten an already imminent death, in order to prevent suffering in the final stages of the dying process. However, in less than four years since its legalization in Canada, it is being expanded far beyond this limited role.

It’s easy to dismiss biblical concerns in the edge cases of severely affected and degraded lives, like those of whom push for these judicial reviews. But the lives of other disabled Canadians are no less important. And vigorous debate on the specific protections that Bill C-7 will ultimately turn into law is important, to prevent that death by suicide is offered as a more accessible option than the support to live a dignified life.

No matter where you stand on this issue, I hope you find the mechanisms by which these rights are challenged and evolved interesting. I think it’s important to spend some time understanding them. Maybe the current debates aren’t particularly important to you personally, but I would argue that this is the right moment to spend time and bandwidth observing how this unfolds. I suspect these cases will become more common and more prominent, particularly as they accelerate in other jurisdictions as well, exerting some influence in our political and judicial climate. Despite the complexities and heartache, I look forward to continuing to understand the nuances behind some of the most challenging conversations in our big and small public squares. And I look forward to sharing my thoughts with you, and hearing yours as well.

Published: March 1, 2021