Jun 5, 2016

The Carter Extension: An Unsettling Use of Scarce Judicial Resources

Carter v. Canada (Attorney General), 2016 SCC 4 (CanLII)

The decision of the Supreme Court of Canada on January 15, 2016 (2016 SCC 4) to extend suspension of the declaration of constitutional invalidity in regards to physician-assisted dying that it had made in Carter v. Canada (2015 SCC 5) passed with little fanfare and was greeted by many as a pragmatic response to delays caused by a long election period. A closer look at the decision and its brief reasoning reveals a troubling precedent. The reasoning in the decision was arbitrary and creates a precedent that unsettles the law in a manner that could encourage executives to use scarce judicial resources for the purpose of avoiding legislative oversight.

Introduction

On December 3, 2015, the Attorney General of Canada (AGC) requested “an order to extend the suspension of the declaration of the constitutional invalidity with respect to ss.14 and 241(b) of the Criminal Code for a further 6 months,”[1] which had been set to terminate on February 6, 2016 (the “Suspension”).[2] On January 15, 2016, the Supreme Court of Canada (SCC) rendered its judgment (“Carter II”).[3] On the issue of the AGC’s request, the SCC was unanimous in granting a four-month extension.[4]

This aspect of the decision was, as the SCC described it, “an extraordinary step.” That the decision was unanimous and justified by – what is hard to construe as anything but – a fig-leaf, is unsettling. The decision to grant a four-month extension was arbitrary on the part of the court as it was made without either evidentiary or reasonable grounds.

The Order Sought

The then-existing Suspension was a consequence of the SCC’s declaration in Carter v. Canada (Attorney General)(“Carter I” or “the original Carter decision”) of February 6, 2015, that “Section 241(b) and s. 14 of the Criminal Code unjustifiably infringe s. 7 of the Charter and are of no force or effect,” but suspended that decision “for 12 months,” (i.e. until February 6, 2016).[5]

In Carter II, the AGC was asking the SCC to declare that ss. 241(b) and 14 of the Criminal Code remain in force and effect until August 6, 2016, notwithstanding the SCC’s declaration that those sections were of no force or effect.

The Authority of Parliament

The decision of the executive to seek that the judiciary make such an order is notable because Parliament had full power to legislate, through ordinary legislation, the request the executive had sought from the judiciary.

This point was raised by Justice Brown at the very end of the hearing on January 11, 2016 as the following question posed to Counsel for the AGC:

Mr. Frater, this maybe goes to [Counsel for the Appellants] Mr. Arvay’s point, he was I think referencing the criteria stated in Schachter[[6]] for suspension and this was in support of his point in whether suspension should even have been granted. But, in theory at least, if this court doesn’t grant a suspension, can’t the Minister ask Parliament, effectively, for a suspension by way of exercise of the override.[7]

Counsel for the AGC responded:

The Government has said nothing other than it will respect this court’s judgement about providing access in some form. But, I suppose, the answer is constitutional dialogue, that this court has spoken of on several occasions, leaves everything open.[8]

Despite this question, the point was neither further canvassed by the court nor address in its reasons.

Per section 33 of the Constitution Act, 1982, Parliament has full power to enact legislation giving effect to the order sought by the executive; namely, that ss. 14 and 241(b) of the Criminal Code shall operate notwithstanding section 7 of the Charter until August 6, 2016.

Despite Parliament being in session and the executive commanding the confidence of a solid majority of MPs, the executive did not seek such legislation from Parliament, but instead sought such a change in the law from the judiciary.

The Court’s Order

In Carter I, no clear test was applied to justify the Suspension for 12 months.[9] Rather, the court noted that “Parliament must be given the opportunity to craft an appropriate remedy:”

What follows is in the hands of the physicians’ colleges, Parliament, and the provincial legislatures…. [W]e do not wish to pre-empt the legislative and regulatory response to this judgment. Rather, we underline that the Charter rights of patients and physicians will need to be reconciled.[10]

In the motion to extend the suspension, the SCC declined to grant the AGC’s request in full. The SCC extended the “suspension of the declaration of invalidity,” but only “by four months from the date it [was] set to expire.”[11] The rationale given for the period of the extension was “the interruption of work on a legislative response to the Court’s decision due to a federal election” and was briefly explained as follows:

In this case, the length of the interruption of work on a legislative response to the Court’s decision due to a federal election constitutes such a circumstance. Parliament was dissolved on August 2, 2015 and officially resumed on December 3 of that year. This four-month delay justifies granting an extension of the suspension of the declaration of invalidity, but only for four months.[12]

Given the rationale provided by the court in the original Carter decision, there had been no material change in circumstances to justify a rationale based on the four-month period between when one Parliament was dissolved and the subsequent Parliament first met.

Between the original Carter decision providing a twelve-month suspension and the AGC’s motion for a further extension, there had be no abbreviation of Parliament’s anticipated sittings.[13] Unless the court is of the view that it chose to ignore the Canada Elections Act[14] when rendering its original Carter decision, the dissolution of Parliament for four months is not a reasonable justification for its decision.

Even if one were to ignore the Canada Elections Act, the delay to the Parliamentary calendar by the dissolution was less than three months (from September 21 to December 3).

Additionally, there was no basis in the evidence presented to the court to justify its rationale. At no point in its submissions did the AGC argue that Parliament being dissolved interrupted the introduction of legislation responding to Carter I. Rather, the AGC commented that the election disrupted the work of “the Government.”[15] In its submissions, the AGC notes that the disruption to the executive was three months:

The federal election campaign began on August 2, 2015, when the Governor General dissolved Parliament, and continued until Election Day, October 19, 2015. The "caretaker convention" that governs government activities during election campaigns meant that there were limitations on the work that could be done, both during the lengthy election period and until the new government was sworn in on November 4, 2015.

That is, the “limitations on the work that could be done” by the executive was restricted during the period from August 2 to November 4.

As a consequence of the Canada Elections Act, a period during the original suspension period in which there would be “limitations on the work that could be done” by the executive was not unforeseen when Carter I was issued. What was not foreseeable, was the precise length of the “caretaker convention.” However, at a minimum, the “caretaker convention” would have to have extended from September 12 until October 19.

The interruption of work on a legislative response to the Court’s decision due to the federal election that could not be foreseen with certainty when Carter I was issued, was, at most, two months. There was neither evidentiary nor reasonable grounds to use the four-month period from the dissolution of forty-first parliament until the official commencement of the forty-second parliament as a rationale for granting a four-month extension. As such, the court’s granting of the extension was arbitrary.

The Precedents

There are three precedents of the court granting an extension to a suspension: (1) the Manitoba Language Rights Reference,[16] (2) Swain,[17] and (3) Feeney.[18] However, none of those cases are analogous to the situation in Carter II; in each of the precedents, the court was making provisions for what, in essence, the legislature could not do itself.

In the Manitoba Language Rights References, the Manitoba legislature lacked the legislative authority to provide the remedy sought from the court. The remedy sought could only come from the court or from a constitutional amendment beyond the authority of the Manitoba legislature alone.[19]

Swain and Feeney, like Carter, involved decisions where (1) the court read-down or struck-down Criminal Code provisions as inconsistent with the Charter, (2) the court granted initial suspensions of the declarations of invalidity so Parliament could legislate a response to the decision, (3) the court later granted extensions of the original suspensions of the declarations of invalidity, and (4) it was within the legislative authority of Parliament to pass legislation that would have had the same effect as the court orders extending the suspensions of the declarations of invalidity. Despite these similarities, the extension in Carter I, was a radical departure from Swain and Feeney.

In Swain[20] and Feeney,[21] the legislation had had already been approved in principle or passed by the House of Commons when the motion for an extension was made by the government and granted by the court.

In Swain, the motion for the extension[22] was made by the AGC on the same day that the House of Commons voted in favour of the second reading of the bill[23] responding to the court’s decision and the court granted the extension[24] while the bill was being considered by committee.[25] In Feeney, the motion for the extension[26] was made by the AGC only after the House of Commons had passed the bill.[27]

In Swain and Feeney, at the moment when the extension was applied for and granted, the court was effectively doing what Parliament could not do itself – at least not without delaying or abandoning the actively in progress legislative response to the court’s decision. At the moment the executive applied for an extension, the House of Commons had approved in principle a legislative response to the court’s decision that had prompted a suspension and there was not enough time for Parliament to complete the necessary procedural steps to enact the legislation before the original suspension would lapse.

Thus, Swain and Feeney stand for the proposition that where Parliament has the legislative authority to extend a suspension of a declaration of invalidity, the court will grant an extension to cover the period for legislation to be enacted only where the House of Commons has approved, in principle, a legislative response (i.e. where the House of Commons has voted in favour of second reading of a bill that provides for a legislative response).

That is, Carter II is not consistent with Manitoba Language Rights References, Swain, and Feeney and either stands for a new proposition or else is wrong. In my view, it is wrong and dangerously so.

The Carter Extension and the Subversion of Parliament

In granting an extension to its Suspension, the court was not merely denying the Charter rights of vulnerable individuals, but it was subverting Parliament’s decision to let the Suspension lapse.

Not only was there no evidence to support an extension beyond, at most, two months, but, rather, there was evidence that the House of Commons and Senate had turned their mind to the issue of the Suspension and decided to let the Suspension lapse.

On December 11, 2015, the House of Commons and Senate each unanimously adopted a motion to create a Special Joint Committee to “make recommendations on the framework of a federal response on physician-assisted dying” and that “the Committee make its final report no later than February 26, 2016.”[28] This motion did not include a request to the executive to seek a judicial extension of the Suspension or otherwise indicate any concern that the Suspension was to lapse on February 6, 2016.

When the SCC heard arguments and made its decision on the extension, evidence of Parliament’s intent regarding “a Legislative Response to Carter v. Canada” was available. That evidence was that Parliament had turned its mind to the issue on December 11, 2015, and had decided that it would not make any attempt to make a legislative response to Carter I by the lapsing of the Suspension on February 6, 2016; rather, it would only begin to consider its response as late as February 26, 2016.

When the SCC granted its extension, it was not granting an extension to a matter that Parliament had not yet had the opportunity to consider or had not made an effort to consider, but to a matter that Parliament had expressly considered and decided that it would not act upon until after the Suspension lapsed (and without demonstrating any concern about that lapse).

Conclusion

The SCC’s extension of the Suspension, in its arbitrary reasoning, muddles the existing precedents and encourages future executives to seek similar relief in a broader range of circumstances. It is problematic enough for the court to be denying Charter rights to vulnerable persons in the first place, but it should not be the role of the SCC at the behest of the executive to subvert the will of Parliament. However, that was the precedent the SCC made in its decision to extend the Suspension of Carter I.

The court gave Parliament a year, in which no unforeseeable delays occurred, to respond to Carter I. It should not be the role of the court to deny Charter rights where Parliament, being given a year to address the matter, decides to neither directly respond to the court’s Charter concerns nor extend a suspension of Charter invalidity where it as the power to do so.

As the mooted Motion 6[29] and the subsequent scandal illustrate,[30] executives often come to find legislative oversight tiresome and seek to curtail it. The SCC should not further encourage executives to avoid legislative oversight by granting motions that the legislature can enact.

A better response to the AGC’s motion to extend the Suspension would have been for the court to have stated that the remedy sought by the AGC could be obtained from Parliament and since there is no evidence that Parliament is concerned with the Suspension lapsing, it is not the place of the court to deny Charter rights by second guessing Parliament (or even to potentially subvert its will). It would follow that the court should have denied the motion to extend and stated that, in light of Swain and Feeney, it would reconsider granting an extension if it was furnished with evidence that the House of Commons has given some approval to a remedy (be it legislation addressing the court’s Charter concerns in Carter I or legislation extending the Suspension).

The SCC’s decision in Carter II provided limited short-term benefits, the primary of which hardly seems appropriate for the court to concern itself with: the political unfairness of burdening a new government with using section 33 of the Charter to address the failure of an outgoing government to promptly respond to a court decision. However, the SCC’s arbitrary rationale in Carter II has the potential to create a number of significant long term problems. First, the SCC denying Charter rights to vulnerable individuals can have a corrosive effect on individual rights generally. Second, the decision muddles the case law and provides no guidance to the bounds of requests for extensions, encouraging future executives to seek to further diminish parliamentary oversight and waste scarce judicial resources. Third, by employing remedies that are available from the legislature, it erodes democracy and legislative oversight of the executive without any concomitant enhancement of individual rights.

The Charter was designed to empowered the courts to balance parliamentary sovereignty and individual rights; in Carter II, the Supreme Court of Canada diminished both.


[1] Registrar, Supreme Court of Canada, “2015-12-03,” Docket: Case Number 35591 (Lee Carter, et al. v. Attorney General of Canada, et al.).

[2] Carter v. Canada (Attorney General), 2016 SCC 4 at para 1.

[3] Carter v. Canada (Attorney General), 2016 SCC 4.

[4] Carter v. Canada (Attorney General), 2016 SCC 4 at para 2.

[5] Carter v. Canada (Attorney General), 2015 SCC 5, para 147.

[6] Schachter v. Canada, [1992] 2 SCR 679.

[9] Carter v. Canada (Attorney General), 2015 SCC 5, paras 126-132.

[10] Carter v. Canada (Attorney General), 2015 SCC 5, para 132.

[11] Carter v. Canada (Attorney General), 2016 SCC 4 at para 7.

[12] Carter v. Canada (Attorney General), 2016 SCC 4 at para 2.

[13] Canada, House of Commons, Standing Orders, s 28(2); Canada, Library of Parliament, “Forty-First Parliament,” PARLINFO.

[14] Canada Elections Act, SC 2000, c 9, s 57(1.2)(c).

[15] Applicant’s Memorandum of Argument, para 1 (Motion Record of the Applicant (FM250), p 52), Factums on Appeal: Case Number 35591 (Lee Carter, et al. v. Attorney General of Canada, et al.).

[16] Re Manitoba Language Rights, [1985] 1 SCR 721, 1985 CanLII 33 and Reference re Manitoba Language Rights, [1992] 1 SCR 212, 1992 CanLII 115.

[17] In R. v. Swain, [1991] 1 SCR 933, 1991 CanLII 104.

[18] In R. v. Feeney, [1997] 2 SCR 13, 1997 CanLII 342.

[19] In Re Manitoba Language Rights, [1985] 1 SCR 721, 1985 CanLII 33, almost all legislation enacted by the Manitoba legislature between 1890 and 1982 was found to be ultra vires the Manitoba Act and the Constitution Act for failing to be enacted in a bilingual form. Absent a constitutional amendment, the Manitoba legislature lacked legislative authority to rapidly remedy the impugned legislation. Consequently, the SCC ordered that the impugned legislation would have indefinite "temporary validity… to the expiry of the minimum period required for translation, re‑enactment, printing and publishing." Subsequently, Reference re Manitoba Language Rights, [1992] 1 SCR 212, 1992 CanLII 115, the SCC revisited the 1985 reference in regards to whether the prior reference extending to Orders-in-Council and documents incorporated by reference. For those instruments found to be ultra vires, a further three-month extension was ordered.

[20] In R. v. Swain, [1991] 1 SCR 933, 1991 CanLII 104, the SCC struck down the criminal code provision for automatic, indefinite detention of an accused found not criminally responsible on the basis that it violated the accused’s section 7 liberty rights. The SCC originally granted a six-month suspension of the declaration. The court later granted orders extending that suspension by a further three months (motion decision of 28 October 1991 SCC File# 19758).

[21] In R. v. Feeney, [1997] 2 SCR 13, 1997 CanLII 342, the SCC read-down the criminal code provision authorizing warrantless arrests, requiring a warrant to effect an arrest in a dwelling house, on the basis that it violated the accused’s section 8 right to be secure against unreasonable search and seizure. Shortly after the original decision, the SCC granted a six-month suspension of the effect of the decision (R. v. Feeney, [1997] 2 SCR 117, 1997 CanLII 343). The court later granted an order extending that decision by a further month (R. v. Feeney, [1997] 3 SCR 1008, 1997 CanLII 301).

[22] Registrar, Supreme Court of Canada, “1991-10-04” Docket: Case Number 19758 (Owen Lloyd Swain v. Her Majesty the Queen).

[23] Canada, House of Commons, Debates, 34th Parl., 3rd Sess.:3, v 3, p 3332.

[24] Registrar, Supreme Court of Canada, “1991-10-28” Docket: Case Number 19758 (Owen Lloyd Swain v. Her Majesty the Queen).

[25] Canada, House of Commons, Debates, 34th Parl., 3rd Sess.:3, v 3, p 3299.

[26] Registrar, Supreme Court of Canada, “1997-11-10” Docket: Case Number 24752 (Michael Feeney v. Her Majesty the Queen).

[27] Canada, House of Commons, Debates, 36th Parl., 1st Sess., v 135, n 30, p 1722.

[28] Canada, House of Commons, Journals, 42nd Parl., 1st Sess., No. 7 (Friday December 11, 2015), pp. 50-51; Canada, Senate, Journals, 42nd Parl., 1st Sess., No. 6 (Unrevised) (Friday, December 11, 2015), pp. 56-58.

[29] Canada, House of Commons, Notice Paper, 42nd Parl, 1st Sess, No 58 (18 May 2016).

[30] John Paul Tasker, “Justin Trudeau's elbowing incident leaves House in an uproar,” CBC News (May 18, 2016 6:19 PM ET).