WEEK 6: LAW AND THE CANADIAN CONSTITUTION: The judiciary, the third branch of government

PROBLEM

Background

• In Carter v Canada (Attorney General), 2015 SCC 5 ["Carter"], the Supreme Court of Canada struck down ss. 14 and 241(b) of the Criminal Code criminalizing assisted suicide, on the basis that these sections violated the right to life under s. 7 of the Canadian Charter of Rights and Freedoms.
• The enforcement of the decision was suspended in order to provide time for the legislature to adopt the required legislative changes.
• On June 15, 2016, theAct to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), SC 2016, c 3, received Royal Assent. Since then, Canadian adults who are mentally competent and suffering intolerably and enduringly have the right to a doctor's assistance in dying.

Reactions & controversy

• The Carter ruling overturned the previous Supreme Court's decisionRodriguez v. British Columbia (Attorney General), [1993] 3 SCR 519 which had denied the right to assisted suicide.
• While some members of the public welcomed the decision as a modern landmark of Canadian law and the consecration of a right to die with dignity, others viewed the Supreme Court's decision as a violation of the rule of stare decisisand an example of "judicial activism."
• Former conservative politician Stockwell Day declared, in reaction to the Carter decision:

"This is a court that is not shy at all about declaring themselves to be activist... They're holding the hand of the parliamentarian and guiding the pen."

• See Jen Gerson, "Assisted-suicide ruling part of 'activist' Supreme Court's stance against social conservative values: Stockwell Day" Feb 08, 2015, online:https://nationalpost.com/news/politics/assisted-suicide-ruling-part-of-activist-supreme-courts-stance-against-social-conservative-values-stockwell-day

Your task

• You are a regular contributor to a nation-wide and prestigious law journal that publishes regular analysis and case comments on landmark Canadian legal cases.
• The next edition of the law journal will cover the topic of separation of powers in the post-Charter Canadian legal system.
• You are asked (and you happily accept) to draft an article commenting on the delicate balance between stare decisis, constitutional supremacy and division of power.

You may use the Carter case, and other jurisprudence and/or doctrine to illustrateyour arguements.