Dier's Remorse

A curious thing happened yesterday at the Supreme Court of Canada. The Court was hearing the appeal from the BC Court of Appeal in a case about euthanasia - specifically the right for those who are unable to take their own lives to have access to "physician assisted death" ("PAD"). You can read the arguments of the appellants in their factum (statement of law and fact) here as a PDF.

Formally known as Lee Carter, et al. v. Attorney General of Canada, et al. the case began in the BC trial division, where Justice Smith ruled that (I'm grossly simplifying here) since able-bodied and mentally competent people can legally and practically end their own lives, there is an inequality because people who are physically unable to end their lives have no access to ending their lives without assistance, particularly humane, competent, physician assisted death. The trial division agreed, but the BC Court of Appeal overturned that decision. The Supreme Court agreed to hear an appeal.

I'm raising this case not to deal with the ethical issues or merits of voluntary euthanasia, although for the record, I agree with the appellants, although I hope never to be faced with that decision. The obvious reality is that end of life decisions are made every single day. People agree to non-resuscitation orders and the removal of feeding tubes in hospitals and nursing homes across Canada. As a former client's Power of Attorney I was once asked for permission to remove him from a ventilator. These are hard decisions (and they should be), but we make them.

The Attorney General of Canada (through the Department of Justice) has opposed this appeal. You can read all their reasons in their own factum filed with the Supreme Court. It relies on a case called Rodriguez from 1993, the "slippery slope" argument (ie: if you allow it, where will it all end? Plus, everyone will want one...), protecting abuse (ie: bumping off Granny to get at her gold teeth), and the ever-popular "Supremacy of Parliament" argument (ie: it's up to Parliament to decide such weighty issues, not the court). Of the last one, it takes some cheek to tell the Supreme Court of Canada it shouldn't have the power to decide human rights issues under the Charter of Rights, since that's its job.

One other argument made in the factum and also in yesterday's oral presentation to the Supreme Court caught my eye as novel. Essentially, the federal government argued that it would be wrong to permit assisted suicide because the people who die that way might live to regret it.

Yes, you heard that right.

Department of Justice lawyers argued that if you allow people to commit suicide, they might regret it...

"[T]hey will be unable to voice their regret once they're dead...."

The Conservatives are well known for defending the "pre-born", but this is the first I have heard of them advocating for the post-dead.

The original trial judge rejected such a notion, pondering the obvious in her judgment wondering "if regret is possible after death."

Apparently no dead people were called as witnesses to testify via Ouija board or through the Long Island Medium about their afterlife second thoughts.

A Face Made For Radio - My Recent Talk Show Appearance

 

I'm very pleased to have been asked last week to appear on @CanadianGlen's radio show "The View Up Here". Over the two hour show we chatted mostly about Harper's Conservatives and their problem with (or refusal to) understand the Charter, role of the courts and the legal limits of a parliamentary constitutional democracy. We talk about their terrible record at the Supreme Court of Canada in pushing their ideological legislation without being burdened with concerns about its constitutionality or little things like a fundamental respect for the rule of law.

Thanks Glen. Here is the archived show:

http://www.blogtalkradio.com/canadianglen/2014/07/31/the-view-up-here-talks-harper-and-the-law-with-stephen-lautens

Harper, Lawyers and the Rule of Law

This is more of a reminder for a larger project I'm fiddling with. I'm fascinated as a lawyer (non-practicing now, thank God) by the attitude towards the law, Charter and courts shown by the Harper Conservatives. Contempt I think is the word that best describes it. The contempt is borne out of a complete and willful lack of understanding of how our parliamentary democracy works and how laws have to be in conformity with the Constitution (including the Charter of Rights).

Theirs is a very unsophisticated - almost juvenile - belief in the "Supremacy of Parliament" and the false god of raw numbers democracy. Due largely to the influence of American republicanism (big and small "R") and prairie charismatic populism, they believe firmly in the right of the majority to tyrannize the minority. The courts of course stand in the way of it as a bulwark against laws that overstep constitutional or deeply-rooted common law precedent.

A recent example (one of many, especially in the wake of the Nadon decision) is a quote from MP Larry Miller, the four-term Conservative MP for Bruce-Grey-Owen Sound. It's saddening that in 4 terms as MP he has still not learned anything about how the parliamentary system works. In fact, he must be actively taking steps to not understand it.

Harper's chair of the Transport and Infrastructure committee, and known as the Conservative “Keeper of the Flame”, Miller recently said:

Larry Miller MP
Deep Thinker

“Taking parliamentary powers away ties into the stories that the courts are making the laws. In my opinion, Parliament should make them and if the public don’t like them, then the public will straighten things out. If you take things one step further, why elect people and pay them to do something the courts are doing. But the courts are not there to make laws, they are there to interpret and enforce those laws.

“There are two main reasons I became a Conservative. Firstly, I’m fiscally responsible — I want to see smaller government, not bigger government. Secondly, I’m all for rights and freedoms but the Charter complicates things. Pierre Trudeau did this willfully and deliberately, taking rights away from the majority to protect the minority. The Charter of Rights puts all the lawmaking decisions into the hands of the Supreme Court and to me, that is not what democracy is about."

 See July 14, 2014 National Post article.

It's hard to know where to start with this level of ignorance, especially the lament about Trudeau and the Charter taking away the right of the majority to beat the tar out of minority interests whenever they feel like it. That was sort of the well-publicized point of it.

Then you have Dan Albas, the MP for Okanagan-Coquihalla, who says "he respects the courts" but the goes on to show contempt for the judicial process:

"Often the Plan B is to do an end-run around our democratic process and turn to the courts where it seems some judges are quite happy to engage. This can result in decisions contrary to what have been decided in our democratic process," Albas told CBC Radio's The House. "Basically what you're having is a judge can overturn and then cost the taxpayer a lot of money without any accountability or representation on their behalf."

Because rights are judged on how much money they cost taxpayers, which the government wouldn't have to spend on court challenges if they cared about them in the first place.


Here's another quote from an anonymous Harper MP that shows some of this contempt for professionalism and the legal profession in particular by his government:

Another recounted receiving a call from the Prime Minister’s Office informing her that she’d received an appointment in the justice ministry: “I said, ‘Tell the prime minister to call me back, I didn’t finish law school.’” When the prime minister called, he told the MP that the department had too many lawyers, and that he needed “some practical politicians in there.”

http://www.samaracanada.com/research/mp-exit-interviews/it%27s-my-party-report/advancement-and-discipline

Imagine the Department of Justice having too many lawyers. Do you think this might be the attitude that has led to so many of their laws and cases being thrown out by the courts as clearly unconstitutional?

New CPC Election Campaign?

Just thought I'd anticipate Harper's next election campaign...