01/13/2016 12:34 EST | Updated 01/13/2017 05:12 EST

Canada's Assisted Dying Ruling Is Tied Up In Government Delays

A doctor breaking the news to his sick patient
KatarzynaBialasiewicz via Getty Images
A doctor breaking the news to his sick patient

In an odd twist of Canadian history and fate, on Monday a British Columbia lawyer defended the Supreme Court of Canada against the Government of Canada.

Almost one year ago, on February 6, 2015, the Supreme Court of Canada unanimously ruled that some Criminal Code sections were unconstitutional regarding a very small group of people who, the Court ruled, are entitled under constitutional law to a physician's help to die.

The Court then said its ruling would not come into effect for 12 months to give governments, if they chose, time to legislate on the matter.

But on Monday, the Government of Canada went back to the Supreme Court to request a further six-month delay claiming that the "important and complex issues require extensive work" that "cannot reasonably be completed" before the looming deadline.

Perhaps a fair translation of this government request is, "The dog ate my homework".

The Government of Canada had plenty of time to act. After all, it has been a defendant in the litigation since 2011, when the case was launched in Vancouver in the British Columbia Supreme Court. In the intervening five years, the Federal Government had only two possibilities for which to prepare: a win or a loss.

But the Conservative federal government did little, leaving the political hot potato for the new Liberal government, which might amend the Criminal Code by the deadline, but says it cannot.

Both governments have put the Supreme Court of Canada in a very awkward position.

The people's elected representatives gave Canada's judges the power and duty to strike down legislation that violates human rights. The Supreme Court did. Now it lies ill in the mouths of governments to say, in effect, "We cannot adequately perform within a system that we created," especially when government delay risks prolonging intolerable suffering.

So on Monday, the lead lawyer for the original plaintiffs, Joseph Arvay, had to argue that the Court should uphold its own decision. He had to remind the Court that its original judgement was sufficiently narrow and clear that doctors could give effect to it for the small group of people.

More importantly, Mr. Arvay had to name the elephant in the room: that federal government response seems focused on WHETHER the Court's original decision should be implemented, when the only constitutionally legitimate question for governments is HOW.

No longer prime minister, Mr. Harper and his disdain for Charter limitations on government power continue in this case to haunt the Court, putting it in a near impossible political position. If the Court grants the requested government extension, then the Court might be seen to be endorsing dilatory government behaviour. If the Court turns down the government request, then it might appear insufficiently deferential.

What's more, the situation was avoidable. The Federal Government did not have to go to Court and could have invoked the "notwithstanding clause"; section 33 of the Charter permits governments to override a judicial decision and to violate a Charter right. But that route would have led to political awkwardness for the government, which awkwardness it has transferred to the Court.

In reminding the Court that the issue is the duration of unconstitutional, intolerable human suffering, Joseph Arvay made clear that the Court's constitutional role. Although that role originated in political decision-making, is not about politics. The Court's constitutional duty is to decide when government violates human rights.

In weighing the failure of both Canadian federal governments to do their homework, the Court is obligated to balance it against the terrible plight of a few Canadians. Like those people who leapt from the burning World Trade Centre on 9/11, some unfortunate souls have only limited and horrible options. As Mr. Arvay argued, "No one wants to die if living is better."

A government that can respond to the suffering and death of a little boy on a Turkish beach by admitting thousands of refugees in a very short amount of time, can probably respond just as rapidly -- this time to the challenge of permitting a clearly and narrowly-defined, small group of people in Canada with intolerable suffering, to exercise their constitutional right to physician assistance in dying.

Juliet Guichon is an Assistant Professor at the Cumming School of Medicine, University of Calgary