Monday, June 13, 2016

Minister Wilson-Raybould is Apparently Above the Law. . . .

Well, it seems pretty clear now that those of us who have been questioning the Liberal's commitment to the constitution were right. Sorry Simon and all the rest who have been so eager to give the Liberals the benefit of the doubt. It seems fairly clear to me that Minister Wilson-Raybould has settled it.

In a so-called 'background paper' sent out by the Minister on Monday, Wilson-Raybould says fairly unequivocally that the Liberal government is above the law. When the Minster says that her government does not have to comply with the Supreme Court's Carter ruling the message is clear. Wilson-Raybould says that the issue is not whether Bill C-14 complies with the Carter decision but whether it complies with the Charter, she is saying very clearly that she and her government are the final arbiters of the Charter rather than the Supreme Court. There is no way for Liberals to parse their way out of this conclusion for the simple reason that the Carter decision IS a reflection of the Charter. The Constitution is not that complicated. The Court is the final arbiter of the Charter not the government of the day. And when the Court unanimously handed down the Carter decision, they were telling the government what the Charter had to say on the issue of assisting dying. They weren't saying "Well, this is how we feel, but the government should interpret the Charter the way it sees fit"!!! Wilson-Raybould should resign immediately because she has just made it clear that she is believes, to quote another oligarch, L'Etat, C'est moi.

Here's the thing - if a Conservative minister have even hinted at this position, liberal bloggers would have spared no vitriol in condemning him/her. If Peter Mackay, Rob Nicholson, or Vic Toews had floated this idea, every progressive blogger I know in Canada would have gone crazy. And any that deny it are just being hypocritical.

I see no reasonable way to misinterpret this. Wilson-Raybould is simply saying the Government doesn't have to listen to the Supreme Court on matters of Charter interpretation, but rather only has to be responsible to itself on such matters. This is exactly the kind of thing we spent years fighting against the Harper government for.

One doesn't need to be an expert like Josh Patterson or Peter Hogg to understand that the Liberal Government has pushed the envelope here into very dangerous territory, territory that violates the very principles of our system of government.

Of course if the Government rejects the Senate amendments to the Bill, and the Senate refuses to comply, we will be at a stalemate that will de facto mean that there is no law at all governing assisted suicide. If the Senate capitulates and the Trudeau government has its way, the SCofC will smack it down the very same way that it continually smacked down the Harper government on similar issues. If I had any doubt before, I have less doubt now, for the simple reason that the Government is de facto saying that it is above the Court on such matters and the Court, to ensure its authority, will, if called upon, rule on the issue with renewed vigour.

Until that day comes, we will continue to have a government that appears to think it can make any law it wants because it will decide what the Charter means. For those who have been eager to give the Trudeau the benefit of the doubt, I think it is time to review that optimism in light of a Minister of Justice who thinks she IS the law.


Alison said...

I was not clear whether Minister Wilson-Raybould was talking about the wording or the intent in Carter.

The Mound of Sound said...

I expected you would come around, Kirby. I'm grateful. Maybe you won't have to join Simon's "Trudeau Hater" gallery.

Simon said...

Hi Kirby...I realize we are friends even though we don't often agree with each other. But at least you could have provided a link to my post so people could read what I actually said, which was far more nuanced than you suggest. And was intended more as a defence of the vulnerable than a defence of the Liberals.

But even more importantly, you should have provided a link to the story on the justice minister's position which I will provide here:

Because this is important:

Whereas the blanket ban on assisted dying had only one purpose — to protect the vulnerable who might be induced in moments of weakness to end their lives — the paper says the proposed new law is aimed at pursuing additional objectives: for instance, to ward against the "normalization" of suicide and to counter negative perceptions of the quality of life of the elderly, ill or disabled.

Consequently, the paper maintains that limiting assisted dying to those who are near death is "fully consistent" with the charter of rights, even if it is much more restrictive than the eligibility criteria set out by the Supreme Court in Carter.

And while you and others may not agree with that, and that's fine. It's consistent with previous directives of the courts.

The background paper notes that the top court, in a previous ruling, has recognized that Parliament need not pass laws that are in "slavish conformity" with its rulings. Moreover, it says the Supreme Court has signalled that it will give "a high degree of deference" to whatever regulatory regime Parliament comes up with.

"The government's position is that the Supreme Court did not intend, in declaring the total prohibition invalid, to constitutionalize any particular legislative model — let alone the broadest possible model, which exists in only three jurisdictions in the world," the paper says.

And a legitimate legal position, which the court may or may not approve. So it's hardly a declaration of being above the law.

And as for whether the bill should be approved, my position only reflects the position of the Canadian Medical Association.

Which is that the bill should be approved so that the needs of most suffering patients can be dealt with promptly , and all medical personnel can be protected from legal liability. While we wait to see what happens in our brave new world. For example, whether assisted dying should be extended to mental patients, or whether Carter itself is challenged for not including minors, as it is in Holland where 12-year-olds can apply to end their lives. Or do you believe that Carter is like the Ten Commandments and is itself above the laws of man.

As I told you before, although I support assisted dying, It's very important that we focus on the big picture, and make sure that we don't go charging into that brave new world without making sure that we know where we are going, and that the rights of the vulnerable are adequately protected. I work with them, I care for them, and surely you wouldn't expect me not to defend those who can't defend themselves?

It's just not as simple as you make out, there are no villains in this story. Anyone who disagrees with you is not a Harperite. And as I told you before you are at risk of relying too much on legalism, while ignoring humanism, and the reality of life and death in our hospitals...

Kirby Evans said...

Hi Simon. I should have provided a link. I meant to and forgot.

I certainly didn't mean in any way to offend you. I don't think you are a Harperite by any means. However, I don't believe that there is any nuance in this aspect of the story whatsoever. Period. Over all, I conceded that there is always an issue of legalism vs. the human aspect. I also admit that people are concerned about the dangers of end of life decisions, and that concern is real to them even if I don't fully share in it.

However, this story has taken a RADICALLY different turn now with Wilson-Raybould's comments, and failure to recognize that is just partisanship, plain and simple. There is NO WAY we would have ever accepted such a position from a Conservative justice minister, nor should we have. Not only is the background paper an outrageously partisan misrepresentation of the facts, it is simply wrong in both law and spirit and Wilson-Raybould knows it. The government HAS to abide by the decision of the Court, period. They can say that the interpreted the ruling differently, but what they can't do is say that they interpret the Charter differently, which is precisely what Wilson-Raybould has done. The proof is in the pudding, as they say. We know this because Wilson-Raybould didn't try to say that she was interpreting the decision differently than the court. Instead, she de facto admitted her guilt in the matter by trying to parce the government's responsibility differently. As far as I am concerned, from a legal/constitutional point of view, this is as bad as anything the Harper government did during their years in power.

There are indeed, two separate aspects of this issue: the legal and the moral. I obviously think that the government is wrong from a legal point of view. And with Wilson-Raybould's words, I think they have graphically demonstrated that they know they are wrong and are now trying to use a slight of hand trick to suggest that the Constitution is different than it really is. It is a misrepresentation to ask if the Carter decision is "above the laws of men" as though the legal decision is a moral one. If we believe in the Constitution, then the Carter decision is, in fact, above the laws of parliament, because it is our highest law, our Charter law.

Kirby Evans said...

However, when we discuss the moral aspect of the issue, then we have to be willing to actually give up the legal aspect of the case to some degree and say, in this case the Charter is wrong. This is fair enough, we can do this. For us as individuals it is easy to do. However, the government has a different standard to which to adhere. If a government thinks the Charter is wrong, it is deeply wrong of them to simply try to spin it differently, they need to come out and say it is wrong and that the constitution itself has to be changed to take into consideration a particular normative issue. The United States has done this 27 times, and it is a fair, in fact I would say a judicious process in every sense of the word.

This is where the moral and legal aspects cross. I actually think it is immoral for the government to try to spin its way through not adhering to the Court's decision and becoming the arbiter of the Charter. If they want to stand on the moral high ground concerning the end of life issues, and they really think there are aspects of the Court's decision that are wrong, then the moral thing to do is to admit that and work toward a constitutional amendment of sorts.

Democracy is a messy business for sure. But if we are willing to simply dispense with the legal because we feel morally compelled in this case, we have to be honest about it and admit the dangers. First the honesty. in your comment you talk about the dangers of the 12 year old in Holland etc. Ok, that's a fair concern, but it is evidence of a moral concern which de facto admits that the law as interpreted by the Court might be dangerous. The Liberals should just say that rather than trying to spin their way to some sort of super-legal status. Once we admit this we then have to admit the dangers of this position itself. When the Conservatives are in Power again (and history and practical sense suggest that they eventually will be) we have to give them the same right to say that they don't believe the Charter is right and admit their right to fight the Court etc.

In other words, I am admitting that you are right in the sense that there are moral issues that might supersede legal ones. But to address those moral concerns a government needs to function through the law or, as I said, we run the risk of a future government acting in ways that we radically disagree with but against which we have no basis to fight. This is why I think this is so important because the Harper government continually tried to do an end run around the process because they believed that they were morally right and that gave them the sort of normative justification for fiddling the system.

In other words, if we say we are morally right, and the Conservatives say they are morally right on some issue, we can't adjudicate unless we can make a legal argument to some degree.

I appreciate your moral concerns. I don't necessarily share them to the degree that you do. Fair enough point of disagreement. But the legal concerns are actually, in this case, similarly moral in the sense that if we don't find a legal consistency with the Charter here (even if that means amending the Charter) then future governments will be able to play fast and lose with the very legal systems we have been trying to protect for years.

(As a small aside, I don't think the CMA is a body to which we should appeal in a case like this. Rather, it is the Colleges of Nurses and Physicians who have a more a authoritative position, because they are actually the regulatory bodies.)

Kev said...

I thought at first that C-14 was just an opening salvo, that the government was just treading lightly. I fully expected to see it expanded during the debate in the house but after listening to various comments made by Wilson-Raybould and health minister Jane Philpott I now fear this is as far as this government is prepared to go on the issue.

No one wants to see a decision forced on one vulnerable person but we needn't, nay mustn't cause one person to needlessly suffer to achieve that goal. Bill C-14 doesn't even come close to that ideal.

The government's stubborn defence of it, going so far as threatening to seize control of the house for five weeks (Motion 6),fails not only on constitutional grounds but on moral ground as well.

janfromthebruce said...

So Liberals have placed themselves above the Charter and above the Supreme Court of Canada. Good post Kirby. And you are right, we are hearing crickets from the crew who ranted daily about the Harper Conservatives acting exactly as thus.