Friday’s ruling by the B.C. Supreme Court legalizing assisted suicide should be applauded. When loved ones are dying of slow and unremitting illnesses, choosing their own deaths is often the only thing they can still control. Of course, until now, anyone who wanted to end his or her life with dignity was unable to do so safely, and anyone who helped a person reach the end was a murderer.
There is something strange about this momentous change, however. Namely, it happened without most people realizing it, as part of a court case. There was no debate in Parliament, no newspaper editorials arguing one way or the other. It just… happened.
The court ruled that while suicide is legal, the prohibition on assisted suicide — especially for the ill or disabled — constitutes an infringement of Charter rights to life, liberty and security. So the sections of the criminal code banning assisted suicide are struck from the books, but Madam Justice Lynn Smith suspended her ruling for one year in order to allow the federal government to draft new legislation to address the matter. It seems unlikely that anyone will take her up on that.
When Ontario’s Court of Appeals struck down laws surrounding prostitution earlier this year, essentially legalizing it fully, it too provided a one-year window for legislators to draft new laws. So far there has been no news on that front.
The same thing happened with abortion. The courts struck down unreasonable restrictions on abortion but left the door open for Parliament to come up with a more workable regime. It never happened, and today Canada is one of few countries with no abortion law whatsoever.
All these decisions have probably been a net gain for Canadians, but we should all be uneasy about the lack of debate on such important issues. Sure, the court may have ruled in favour of greater personal choice and freedom, but who’s to say a future court won’t make similarly sweeping decisions that most people will hate? This isn’t some esoteric concern about “judicial activism” but rather an indictment of the utter lack of leadership by the country’s politicians on issues of national significance.
Even gay marriage, today a source of pride and superiority over our American neighbours, took action from the courts and countless activists before the federal government caught up with the public. As recently as 1999, the Liberals held on to “traditional marriage” and voted 216-55 in favour of an opposition motion defining marriage as between one man and one woman. It wasn’t until 2005 that Paul Martin’s government finally recognized the legality of same-sex marriages by passing Bill C-38.
We can’t and shouldn’t expect unelected judges to always right the country’s wrongs. However, if the omnibus budget disaster is any indication, it seems few people in government have the appetite to tackle big issues openly and transparently. Want to make sweeping environmental changes? Stuff it in a giant 425-page bill. Want to change the criminal code in a variety of stupid and punitive ways? The omnibus crime bill is your friend.
The worst part of this trend is what happens when the courts don’t step in. The ongoing failure known as the War on Drugs, escalated under the Conservative government despite acknowledgement from non other than the prime minister that it’s not working, is but one area where an open national dialogue is warranted. It’s simply not worth waiting for the Supreme Court to strike down draconian drug laws when they are doing harm right now, but the likelihood of federal parties having the guts to have that discussion seems remote.
The courts are supposed to be a way for Canadians to seek justice when the law doesn’t provide it, but judges were never meant to replace legislators altogether.