Assisted Suicide Appeal By Canadian Government Announced

No surprise that the Federal government will be appealing the assisted suicide decision recently rendered by the British Columbia Supreme Court in Carter v. Canada (Attorney General). As discussed in my previous postings on the issue, the Federal government, through the Minister of Justice Rob Nicholson, had thirty days from the handing down of the BC decision to appeal to the British Columbia Court of Appeal. The time deadline was today and true to form, the government squeezed within the time period by filing the Notice to Appeal today. The government will also seek a stay of the ruling of Madam Justice Lynn Smith, which permits Gloria Taylor, suffering from ALS, to seek an assisted suicide when she so chose to do so through a rarely used constitutional exemption.

In Rob Nicholson's statement announcing the appeal, he maintained that the laws surrounding assisted suicide "exist to protect all Canadians." This idea of safeguarding an individual's life, even if the individual wants to end that life, is very consistent with the Supreme Court of Canada ruling in the Rodriguez case from 1993. Whether or not this idea of "government-knows-best" is still consistent with present Canadian values will no doubtedly be at issue when the Taylor et al case is ultimately heard before the Supreme Court of Canada. Again, considering the make-up of the present day SCC, particularly with the presence of Chief Justice McLachlin, who disagreed with the Rodriguez majority ruling, this rather outmoded idea of government as ultimate protector may be an idea of the past. Stay tuned to this blog for more on this issue.

Creating A Positive Out of A Negative

Today, we will journey from yesterday's Peace Camp to Victoria's Tent City and discuss the legal implications of protecting positive rights through the Charter.

Our Charter is generally a negative rights document protecting mostly civil and political rights. To protect these rights, the government is required to refrain from action, essentially to leave us, the right-holders, alone to enjoy rights such as freedom of religion (s.2(a)) and freedom of expression (s.2(a)).

The idea of positive rights in the human rights context is more problematic. These rights require the government to take action, to fulfill our entitlement to rights. They are typically socio-economic in nature and cover a wide array of social welfare issues such as the right to education or the right to health care. 

Traditionally, our Courts have been reluctant to find positive rights protection in the Charter : this would require the non-elected judiciary to step into the political fray by creating public policy. Despite this cautious approach, as Dylan would say (that's Bob, not Thomas), "the times they are a changin'." An example of this judicial trend into the positive rights arena, is the Supreme Court of Canada decision in the Chaouilli case, where Quebec legislation limiting timely access to health care was found to violate s.7 rights under the Charter.

Recently, further forays into the positive rights territory has produced interesting results. The 2009 Adams case, a particularly unique case from the British Columbia Court of Appeal (BCCA), highlights the lengths the Court will go to protect basic human rights, such as shelter. At the time of Adams, the City of Victoria was experiencing a severe shortage of shelter beds for the City's numerous homeless, resulting in a Tent City erected in a local public park. The Tent City housed 70 homeless people by the time the City of Victoria started legal steps to evict the people through the authority of the municipal bylaw. 

In a bold decision, the BCCA found the bylaw was overly broad and deprived the homeless people of their right to life, liberty and security of the person under s. 7 of the Charter by prohibiting the assembly of temporary overnight shelters by the homeless, who had no alternative accommodations. To require them to leave would negatively impact their personal integrity and diminish greatly their human dignity and self-worth.

As a result, the Court crafted a highly ingenious and singular remedy declaring the legislation inoperative when the number of homeless people exceeded the number of shelter beds available. The Court was sending a clear message to the City of Victoria: provide or accept the consequences.

The interesting aspect of this positive rights movement is how grounded it is in the basic minimal needs one requires in order to live; water, food, and shelter. And yet considering the origins, why is this such a unique foray? If indeed these rights are so basic, why are they not already "covered" by the Charter?

Perhaps the answer lies at the beginning of this post; with the meaning of positive rights. The government must act to fulfill these basic rights, which means big government spending big money. Not such a popular notion in a weakened economy. Another reason may be more subtle and may be found in the historical framework of our liberal democracy itself as epitomized by the laissez-faire or "hands off" government policies of the economist Adam Smith.

For whatever reason, it is clear the Courts have become more positive about our rights, which proves a positive can be created out of a negative.