A fragile two-decade -old Supreme Court consensus that may not have survived the test of time is all that now stands between Canada’s MPs and a debate they don’t want on the right to an assisted suicide.
On Friday, the British Columbia Supreme Court ruled that the prohibition on doctor-assisted suicide was unconstitutional.
Justice Lynn Smith gave Stephen Harper’s government a year to come up with a constitutionally friendly version of the legal dispositions on the matter.
If only because it amounts to their last best hope of dodging a divisive national social policy debate, the federal Conservatives will almost certainly appeal the finding.
At a minimum, taking it up to the Supreme Court would allow the government to buy time. In the best-case scenario for the ruling Conservatives, the B.C. ruling could be overturned.
The last time the top court pronounced on the issue, it declined to pry open the door to assisted suicide. But that was in 1993 and the ruling split the court 5 to 4.
At the time, opponents of a more liberal regime won the day by arguing that legalizing assisted suicide, even within a framework of strict guidelines, would lead to involuntary euthanasia.
Since then the Netherlands, Belgium, Switzerland and, closer to home, American states such as Oregon have experimented with assisted suicide. Its Canadian proponents are back in court armed with data to back their contention that the predicted slippery-slope effect has not materialized.
There is a well-established federal pattern of exhausting all legal avenues before putting a tricky social policy issue before Parliament.
In the 1970s and ‘80s, Liberal and Tory governments turned a blind eye to the refusal of Quebec juries to convict doctor Henry Morgentaler for performing abortions on demand until the Charter of Rights and Freedoms brought the Supreme Court to put the issue squarely on Parliament’s agenda.
More recently, successive Liberal prime ministers delayed a debate on same-sex marriage by referring the issue to the top court.
But the similarities between the politics of the right to abortion and the same-sex marriage debates and those that attend the legalization of assisted suicide stop there.
There is a lot less public ambivalence toward the right to assisted suicide than there was to abortion on demand, or the expansion of the legal definition of marriage to include same-sex spouses.
According to polls, a strong majority of Canadians support the concept of legal assisted suicide. In some regions, such as Quebec, that support is overwhelming.
Yet that majority is a political orphan on Parliament Hill.
While the NDP spent years on the barricades fighting for a woman’s right to decide to terminate a pregnancy and for the recognition of same-sex marriage, it is not inclined to the same level of activism on assisted suicide.
In the dying days of the last Parliament, a private member’s bill sponsored by veteran Bloc Québécois MP Francine Lalonde was defeated 228 votes to 59.
Lalonde has since retired and the vast majority of those who supported her bill are no longer in the House. Last fall, spokespeople for the three main parties unanimously rejected the notion of re-opening the debate.
Friday’s ruling may spell the beginning of the end of that collegial conspiracy of silence.
In power, both the Tories — under their previous, more progressive configuration — and the Liberals ruled out using the notwithstanding clause of the Constitution to maintain the original Criminal Code section dealing with abortion and the gender-based definition of marriage.
As Conservative leader and prime minister, Stephen Harper has never formally shut the door to that option.
If it comes down to a choice between trying to bring his caucus — including its social conservative wing — around to supporting a less prohibitive approach to doctor-assisted suicide, or becoming the first prime minister to ask Parliament to suspend the equality rights of some Canadians, it will be interesting to see on which side Harper comes down.
Chantal Hébert is a national affairs writer for the Toronto Star.