Dialogue, Remedies, and Positive Rights: Carter v. Canada as a Microcosm for Past and Future Issues Under the Charter of Rights and Freedoms.

• Author: Macfarlane, Emmett

THE 2015 ASSISTED DYING case, Carter v Canada, involved an issue as fundamental to personal liberty as any the Supreme Court of Canada has ever dealt with under the Charter of Rights and Freedoms. The substantive questions at the core of the case remain relevant, and policy-makers and scholars continue to examine the difficulties associated with regulating access to medical aid in dying. Yet, beyond its central issue, the Carter case and its fallout also implicate a host of subsidiary matters relating to judicial review under the Charter. This paper assesses Carter as a microcosm for examining a set of issues that have occupied Charter scholars, including inter-institutional dialogue, judicial remedies, and positive rights. These issues will remain pivotal as the Charter moves beyond its 35th anniversary. The Carter case serves as a lens of analysis for these issues, functioning, to a significant degree, as a critical juncture for an exploration of the evolution of these concepts/debates.

L'ARRET CARTER C CANADA, rendu en 2015 en matiere d'aide medicale a mourir, portait sur un des enjeux les plus fondamentaux pour la liberte personnelle que la Cour supreme du Canada ait eu a trancher en vertu de la Charte des droits et libertes. Les questions de fond au coeur du litige demeurent toujours d'actualite et les decideurs comme les chercheurs continuent d'examiner les difficultes reliees a la reglementation de l'acces a l'aide medicale a mourir. Et pourtant, au-dela de sa question centrale, la decision Carter et ses retombees impliquent egalement une myriade de questions subsidiaires liees a l'examen judiciaire en vertu de la Charte. Dans cet article, on considere l'arret Carter comme un microcosme permettant d'examiner un ensemble d'enjeux ayant fait l'objet d'etudes de la part des specialistes de la Charte, notamment le dialogue interinstitutionnel, les recours judiciaires et les droits positifs. Ces sujets demeureront cruciaux alors que la Charte poursuit son cheminement apres avoir celebre son [35.sup.e] anniversaire. L'arret Carter sert de lorgnette pour analyser ces enjeux et, dans une plus large mesure, constituera un tournant critique pour une exploration de l'evolution de ces concepts/debats.

CONTENTS Dialogue, Remedies, and Positive Rights: Carter v Canada as a Microcosm for Past and Future Issues Under the Charter of Rights and Freedoms Emmett Macfarlane Introduction 109 I. Dialogue: An Increasingly Contested Concept 112 II. Unfair and Unnecessary: The Suspended Declaration of Invalidity 116 III. Access to Health Care in a Negative Rights Frame 121 IV. Moving Forward: Reconsidering Past and Present Issues Under the Charter 126 INTRODUCTION

The assisted dying case, Carter v Canada (Attorney General), (1) involves an issue as fundamental to personal liberty as any the Supreme Court of Canada ("the Court") has dealt with under the Charter of Rights and Freedoms. (2) The Court unanimously held that the federal criminal prohibition on assisted suicide violates the right to life, liberty and security of the person under section 7 of the Charter. The Court declared the prohibition "void insofar as it deprives a competent adult of such assistance where (1) the person affected clearly consents to the termination of life; and (2) the person has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition." (3) The Court suspended the declaration of invalidity for 12 months. (4) During that time, an intervening election took place, and the new Liberal government sought a six-month extension to craft appropriate response legislation. The Court granted a four-month extension. (5)

In June 2016, Parliament passed Bill C-14, which regulates access to medical aid in dying for individuals at least 18 years of age who suffer from a "grievous and irremediable medical condition." (6) The new legislation establishes a relatively narrow threshold for access, one that is more restrictive than outlined by the Court. Among the criteria, a person with a grievous and irremediable medical condition must be in "an advanced state of irreversible decline in capability," and their natural death must be "reasonably foreseeable." (7) Without using the word "terminal," the new law effectively limits access to people with terminal conditions--a limit that the Court's baseline threshold for access does not contemplate. As Carissima Mathen notes, the government's narrow approach "may prove to be constitutionally suspect." (8)

There will continue to be debate over the Court's substantive reasoning in Carter and the constitutionality of the government's new legislation. (9) Yet, beyond the substantive policy and constitutional issues at stake, the Carter case and its fallout also implicate a host of heavily-debated matters important to judicial review under the Charter. In the spirit of a special issue on the 35th anniversary of the Charter and Constitution 150, which seeks to examine both the legacy of the Charter as well as offer forward-looking analysis, this paper will focus on three of these key issues: (1) Charter dialogue; (2) remedies; and (3) positive rights. I argue that Carter and its aftermath highlight each of these distinct facets of both the Charter and judicial review in ways that reinforce their serious operational or conceptual deficiencies. As a result, the Carter case serves as a microcosm, offering lessons for the utility of the dialogue concept, the Court's use of a suspended declaration of invalidity, and the complex question of positive rights under the Charter.

In Part I, I examine the implications of Bill C-14 for the notion that there is an inter-institutional dialogue under the Charter. Under the dialogue metaphor, legislatures are purportedly able to respond to judicial decisions by implementing new legislation, demonstrating that courts do not necessarily have the final say over the fate of the policy objectives at stake. (10) Bill C-14's restrictive threshold for access to medical aid in dying, as described above, seems to be an excellent example of dialogue given that it departs from the Court's policy prescription. However, the perception that Bill C-14 will prove unconstitutional would undoubtedly lead some observers to reject the new law as an example of dialogue. The utility of the dialogue metaphor to accurately describe the relationship between courts and legislatures under the Charter has been subject to extensive empirical and conceptual debate. (11) Carter serves as yet another, and perhaps final, nail in the concept's coffin. (12)

Part II provides a critique of the Court's use of the suspended declaration of invalidity in the Carter case. The Court's increasing application of this remedy, for which it had previously established strict parameters (now ignored), has been the subject of critical analysis by commentators for some time. (13) I argue that the Carter case, the government's subsequent request for an extension on the suspended declaration, and the Court's decision to provide one in Carter II, expose in pronounced terms fundamental problems associated with the liberal use of the remedy.

In Part III, I examine the implications of Carter for the distinction between negative and positive rights under the Charter. Although the focus of the Court's section 7 analysis was the criminal law prohibition on assisted suicide, the case has significant repercussions for access to medical aid in dying as a function of provincial delivery of health care. While Carter is ostensibly a negative rights case--negative rights being those rights infringed or limited by state action--it has obvious positive rights implications that may require state action and resources to facilitate. Federalism is an important intervening variable in cases that pertain to criminal law but that have consequences for health care delivery. As with previous cases regarding criminal law but fundamentally relating to questions of access to health services, (14) the Court does not sufficiently confront this issue in its reasoning.

Part IV briefly concludes by arguing that Carter offers a number of lessons for relevant actors. I offer some brief thoughts about how these various issues might develop.

1. DIALOGUE: AN INCREASINGLY CONTESTED CONCEPT

   Peter Hogg and Allison Bushell's 1997 article on Charter dialogue captured the imagination of academics, lawyers, and even some Supreme Court justices; the concept has also been met with significant criticism, particularly from political scientists. One of the central issues is the extent to which dialogue actually exists in practice. In their original formulation of dialogue, Hogg and Bushell state that dialogue occurs when "a judicial decision striking down a law on Charter grounds can be reversed, modified, or avoided by a new law." (15) Using this definition, political scientists found that dialogue was actually quite rare. One study, looking at the substantive legislative responses to all Supreme Court Charter invalidations, found that dialogue occurs in as few as 17.4 percent of cases. (16)

   A key source of disagreement over the empirical measurement of dialogue questions whether laws that merely enact judicially prescribed policies (or even instances where legislatures simply repeal laws that have been subject to judicial invalidation) should count as dialogue. Despite defining dialogue as occurring when legislatures pass a new law to reverse, modify, or avoid the policy effects of judicial decisions, Hogg and Bushell count any legislation as dialogue, including decisions to repeal invalidated laws. As they argue, "it is always possible that the outcome of a dialogue will be an agreement between the participants!" (17) From an empirical perspective, however, it is difficult to know whether governments engage in "genuine agreement" or...